0'^ 


^ 


<^ 


^       •H 


^ 


>*-" 

^ 


^  2) 


.<• 


1: 

k^  }  • 


vt 


^^ 


^v 


7 


A  TREATISE  ON  THE  LAW 


RELATING   TO 


THE  POWERS,  DUTIES,  RIGHTS,  AND 
LIABILITIES 

OF 

EXECUTORS,  ADMINISTRATORS 
AND  GUARDIANS 


A  PRACTICAL  GUIDE 

FOR 
THE    EXECUTION    OF   THEIR    TRUSTS;    DEFINING,    ALSO,    THE     JXmiSDICTION    AND 
POWERS    AND   DUTIES    OF   THE     PROBATE     COURTS,    AND    GIVING    THE 
LAW    AND    PRACTICE    IN   SAID    COURTS,  WITH    APPROPRIATE 
FORMS  AND  RECORD  ENTRIES,  ESPECIALLY  ADAPTED 
TO   THE    LAWS    OF   MISSOURI,  BUT    USE- 
FUL   IN    OTHER    STATES 


BY  HENRY  S.IKELLEY 

AUTHOR   OF   "kELLEY'S   CRIMINAL  LAW   AND  PRACTICE' 
AND  "kELLEY'S   JUSTICE  TREATISE" 


FOURTH  EDITION 

BY 

WM.  P.  BORLAND  AND  JOHN  B.  GAGE 

OF  THE  KANSAS   CITY  BAR 


KANSAS  CITY.  MO. 

VERNON  LAW  BOOK  COMPANY 
1913 


Entered  according  to  Act  of  Congress,  in  the  year  1871 
By  W.  J.  GILBERT,  FOR  HENRY  S.  KELLEY 
In  the  office  of  the  Librarian  of  Congress  at  Washington 


SECOND  EDITION 


Entered  according  to  Act  of  Congress  in  the  year  Eighteen  Hun- 
dred and  Eighty-Pour 
By  henry   S.  KELLEY 
In  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


THIRD    EDITION 


Entered  according  to  the  Act  of  Congress  in  the  year  Nineteen 

Hundred  and  Three 

By  HENRY  S.  KELLEY 

In  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


FOURTH  EDITION 


Copyright  1913 

BY 

VERNON  LAW  BOOK  COMPANY 


(Kel.Mo.P.G.) 


,J.  .v-7/ 


\J 


PREFACE  TO  FOURTH  EDITION 


It  was  not  the  intention  of  the  editors  in  the  preparation  of 
this  edition  of  Kellcy's  Probate  Guide  to  alter  or  change  the 
general  structure  and  manner  of  treatment  to  which  Judge 
Kelley  had  conformed  in  previous  editions.  The  revision  it- 
self was  demanded  on  account  of  the  many  changes,  both  stat- 
utory and  by  decision  of  appellate  courts  in  the  probate  law 
and  the  administration  thereof,  which  have  occurred  in  the  ten 
years  that  have  elapsed  since  the  edition  as  revised  by  the  au- 
thor himself  was  published. 

Every  section  of  the  text  has  been  carefully  revised  and 
rewritten  wherever  necessary  to  conform  to  the  present  day 
law.  Numerous  additional  cases  have  been  examined  and  cited 
to  that  portion  of  the  text  to  which  they  apply.  The  revision 
has  been  made  with  reference  to  the  1909  Revised  Statutes 
of  Missouri  to  which  the  text  is  related  by  proper  reference 
to  the  sections  of  the  Statutes. 

It  was  always  the  intention  of  the  author  that  this  work- 
should  be  rather  a  practical  guide  in  the  everyday  administra- 
tion of  the  probate  law  than  a  book  of  authoritative  reference 
in  litigated  controversies  which  involve  the  construction  of  va- 
rious features  of  the  subject  to  which  it  relates.  The  editors 
in  this  revision  have  had  this  purpose  of  the  author  in  mind, 
and  have  attempted  to  conform  thereto.  They  trust  that  those 
who  may  be  called  upon  to  use  this  treatise  will  find  it  of  as- 
sistance, and  that  it  will  lessen  the  labor  of  the  court,  lawyer, 
or  layman  who  may  have  occasion  to  consult  it. 

William  P.  Borland. 

John  B.  Gage. 
Kansas  Citt,  Missottbi,  January  1,  1913. 

(Ill) 


PREFACE  TO  THIRD  EDITION 


Important  changes  having  been  made  in  the  laws  in  relation 
to  the  administration  and  settlement  of  the  estates  of  deceased 
persons,  and  matters  of  guardianship,  and  the  like,  and  the  ar- 
rangement of  chapters  and  numbers  of  the  sections  of  the  gen- 
eral statutes  having  been  changed  in  the  revision  of  1899,  make 
it  necessary  to  issue  a  new  and  third  edition  of  this  work; 
therefore,  the  author  has  revised  and  rewritten  much  of  the 
former  text  and  added  a  few  new  chapters  and  other  matters 
which  will  make  the  book  more  convenient  and  useful  for  those 
concerned  in  the  business  to  which  it  relates. 

It  defines  the  jurisdiction  and  powers  and  duties  of  the  Pro- 
bate Courts  and  of  the  judges  and  clerks  thereof  in  vacation; 
and  it  gives  the  law  and  practice  in  said  courts,  with  appropri- 
ate forms  and  record  entries  with  reference  to  the  statutes 
now  in  force  and  the  decisions  of  the  Supreme  and  Appellate 
Courts  of  the  State  of  Missouri,  to  wit : 

1.  The  execution,  the  probate,  the  revocation,  and  the  con- 
struction of  last  wills  and  testaments. 

2.  The  appointment,  the  powers,  duties  and  liabilities  of  ex- 
ecutors and  administrators  in  the  settlement  of  estates  of  de- 
ceased persons,  from  the  grant  of  letters  to  final  settlement  and 
discharge  of  the  executor  and  administrator. 

3.  The  property  rights  of  the  widow  and  children  in  both 
real  and  personal  estate,  as  to  dower,  homestead  and  the  dis- 
tribution of  estates  under  the  law  of  descents  and  distribution, 
with  instructions  and  forms  of  procedure  for  setting  off  dower 
and  homestead  or  ascertaining  the  present  value  thereof. 

4.  The  rights,  duties  and  liabilities  of  guardians  and  cura- 
tors of  the  persons  and  estates  of  minors. 

5.  The  appointment  of  guardians  for  the  care  and  manage- 
ment of  the  persons  and  estates  of  idiots,  lunatics,  persons  of 
unsound  mind  and  habitual  drunkards. 

6.  The  appointment  of  guardians  for  friendless  children. 

7.  The  adoption  of  children  and  the  apprenticeship  of  mi- 
nors, together  with  all  other  matters  pertaining  to  the  above 
subjects. 

8.  The  law  in  relation  to  the  collateral  inheritance  tax. 

(iv) 


PREl'ACE    TO    SECOND    EDITION  V 

Our  references  to  the  Revised  Statutes  of  1899  are  thus: 

R.  S.  1899,  Sec.  .  or  R.  S.  Sec. ;   and  to  the  Supreme 

Court  Reports,  thus:  168  Mo."  95;  and  to  the  Missouri  Ap- 
peals Reports,  thus :    80  M.  A.  21,  or  80  A.  21. 

Believing  that  the  convenience  and  usefulness  of  this  book 
has  been  improved  by  this  revision,  it  is  respectfully  submitted 
by  the  author.  H.  S.  Kkli^EY. 

St.  Joseph,  Mo.,  April  1,  1903. 


PREFACE  TO  SECOND  EDITION 


SiNCK  the  publication  of  the  first  edition  of  "Kelley's  Probate 
Guide,"  many  important  chang-es  have  been  made  in  the  laws 
in  relation  to  the  administration  and  settlement  of  decedents' 
estates,  and  matters  of  guardianship,  making  a  revision,  and 
second  edition  of  the  book,  necessary,  if  not  indispensable,  to 
its  further  usefulness.  The  probate  laws  of  Kansas  being  sim- 
ilar to,  and  for  the  most  part  taken  from,  the  probate  laws  of 
Missouri,  so  that  both  of  these  states  have  substantially  the 
same  system  of  administration  laws,  the  author  has  prepared 
this  edition  with  reference  to  the  laws  of  both.  Indeed,  the 
book  has  been  thoroughly  revised,  rewritten  and  enlarged,  sev- 
eral new  chapters  being  added,  and  the  whole  plan  and  scope 
of  the  work  changed,  so  as  to  adapt  it  to  both  Missouri  and 
Kansas. 

It  defines  the  jurisdiction  and  powers  and  duties  of  the  pro- 
bate courts  and  of  the  judges  thereof  in  vacation;  and  it  gives 
the  law  and  practice  in  said  courts,  with  appropriate  forms  and 
record  entries  with  reference  to  the  statutes  now  in  force  and 
the  decisions  of  the  Supreme  Courts  in  relation  to : 

1.  The  execution,  the  probate,  the  revocation  and  the  con- 
struction of  last  wills  and  testaments. 

2.  The  powers  and  duties  and  liabilities  of  executors  and  ad- 
ministrators in  the  settlement  of  estates  of  deceased  persons, 
from  grant  of  letters  to  final  settlement  and  discharge  of  the 
executor  or  administrator. 

3.  The  property  rights  of  the  widow  and  children  in  both 
real  and  personal  estate,  as  to  dower,  homestead  and  the  dis- 
tribution of  estates  under  the  law  of  descents  and  distributions. 


Vi  PREFACE    TO    FIRST    EDITION 

4.  The  rights,  duties  and  liabilities  of  guardians  and  curators 
of  the  persons  and  estates  of  minors. 

5.  The  appointment  of  guardians  for  the  care  and  manage- 
ment of  the  persons  and  estates  of  idiots,  lunatics,  persons  of 
unsound  mind,  and  habitual  drunkards. 

6.  The  adoption  of  children  and  the  apprenticeship  of  mi- 
nors, together  with  all  other  matters  pertaining  to  the  above- 
named  subjects. 

The  sections  of  the  revised  statutes  of  Missouri,  in  the  re- 
vision of  1879,  having  been  numbered  successively  throughout 
the  whole  revision,  our  references  are  to  them,  thus :  R.  S. 
1879,  §  - — ,  or  R.  S.  § .  And  the  Compiled  Laws  of  Kan- 
sas (Dassler's  compilation)  1879,  also  having  the  sections  num- 
bered consecutively  throughout  the  whole  volume,  our  refer- 
ences to  them  are  thus,  C.  L.  1879,  § ,  or  C.  L.  § . 

Hoping  that  the  profession  and  others  into  whose  hands  this 
volume  may  fall  will  overlook  its  imperfections  and  accord  to 
it  whatever  of  merit  it  deserves,  it  is  respectfully  submitted 
by  the  Author. 

Savannah,  Mo.,  January,  1884. 


PREFACE  TO  FIRST  EDITION 


In  the  course  of  each  generation  all  the  property  of  the  coun- 
try passes  through  the  process  of  administration,  and  as  a  con- 
sequence, almost  every  person  is  at  some  time  in  his  life  inter- 
ested, or  concerned  in  some  way,  in  the  settlement  of  dece- 
dents' estates,  or  in  the  management  of  the  interests  of  minor 
children.  And  not  only  are  the  rights  of  creditors,  heirs,  dev- 
isees, legatees  and  distributees,  committed  to  the  care  of  those 
concerned  in  the  business  of  administration  and  guardianship, 
but,  what  is  of  still  more  importance,  the  titles  to  real  estate 
sold  by  executors  and  administrators,  or  guardians  and  cura- 
tors, depend  upon  the  accuracy  with  which  they  comply  with 
the  requirements  of  the  statute  authorizing  such  sales.  Hither- 
to no  work  of  this  character,  adapted  especially  to  the  laws  of 
this  state,  has  ever  been  published.  To  supply  the  omission, 
and  place  within  the  reach  of  every  person,  who  may  in  any 


PREFACE   TO    FIRST    EDITION  Vll 

manner  be  concerned  in  the  transaction  of  probate  business,  a 
safe  and  convenient  guide,  is  the  object  of  this  vokime. 

In  the  preparation  of  the  work  nothinj^  further  has  been  at- 
tempted than  a  compilation  of  the  laws  and  general  principles 
thereof,  supplemented  by  practical  suggestions,  precedents  and 
forms,  rendering  the  powers  and  duties  of  executors  and  ad- 
ministrators, and  guardians  and  curators,  and  the  practice  in 
the  prol)ate  courts  of  easy  comprehension. 

It  is  hoped  and  believed  by  the  author  that  the  work  will  be 
found  not  only  useful  to  those  who  have  no  professional  educa- 
tion or  experience,  but  will  be  a  welcome  assistant  to  those  en- 
gaged in  the  practice  of  the  profession,  although  it  is  not  spe- 
cially designed  for  professional  readers.  It  is  impossible  to 
dispense  with  the  aid  of  attorneys  in  the  administration  of  es- 
tates, for  complications  arise,  and  responsibilities  are  often 
involved  which  require  professional  advice  and  assistance. 
Therefore,  the  law  encourages  the  employment,  and  provides 
for  the  compensation  of  lawyers  in  all  proper  cases  in  the 
course  of  administration ;  and  the  profession  is  seldom  better 
employed  than  in  protecting  estates  from  loss,  contributing  to 
the  payment  of  creditors,  and  saving  as  much  as  possible  for 
widows  and  children. 

Having  stated  the  character  and  object  of  the  work,  and  in- 
voking the  charity  of  the  profession  for  its  imperfections,  it  is 
respectfully  submitted  to  the  public.  Henry  S.  Keli^hy. 

Savannah,  Mo.,  March,  1871. 


TABLE  OF  CONTENTS 


CHAPTER  I 

OF  THE   rOWF.R  AND   CAl'ACITi'  TO   MAKK   Wrf.LS 
Sec.  Page 

1.  Origin  of  wills 1 

2.  Definitiou    2 

3.  Nature  of  n  will 3 

4.  Codicils    3 

5.  Testamentary  capacity — In  j^eneral 4 

6.  I  nf a  ncy    4 

7.  Coverture 5 

S.  Alienage   6 

9.  Deaf   and   dumb 7 

10.  Mental  incapacity 8 

11.  Idiocy     10 

12.  Lunacy   10 

13.  Senile  dementia 11 

14.  Drunkenness   12 

15.  Duress   13 

16.  Fraud    13 

17.  Undue   influence 14 

18.  Conviction  for  crime 15 

19.  Same    16 


CHAPTER  II 
OF  THE  FORM  AND  MANNER  OF  MAKINO  WILLS 

20.  Essential  ingredients IS 

21.  The  will  must  be  in  writing 10 

22.  How  to  be  worded 19 

23.  Same — Rule  in  Shelley's  Case — What  estate 20 

24.  By  whom  written — rresumptively  void  when 21 

25.  Must  deiieud  on  event  of  death 22 

26.  How  and  where  to  be  signed 22 

27.  Same   23 

28.  How  attested 24 

29.  Competency  of  attesting  witnessi-s 2.'i 

30.  Attestation— Clause  2(: 

31.  Care  in  drafting  will 2(J 

Form  of  written  will 27 

Form  of  codicil 28 

Form  of  nuncupative  will 28 

Kel.Mo.P.G.  (ix) 


TABLE   OF   CONTENTS 


CHAPTER  III 

DISINHERITING  WIFE  OR  CHILD 
Sec.  Page 

32.  Disinheriting  wife  or  child 30 

33.  Same — Estate  must  be  devised  or  bequeathed 31 

34.  Child  not  disinherited  unless  named  or  provided  for 32 

35.  Same    32 

36.  Same— How  named 33 

37.  Same  34 

38.  Effect  of  such  omission  on  the  will 3.1 

39.  Same — Rights  of  child  omitted  in  the  estate 35 

40.  Agreement  to  dispose  of  property  by  will 35 


CHAPTER  IV 
OF  NUNCUPATIVE  OR  UNWRITTEN  WILLS 

41.  Nuncupative  will — When  allowed 37 

42.  Same — In  Missouri 38 

43.  Same — By  mariner  or  soldier 38 

44.  Gift  causa  mortis  and  inter  vivos 39 

CHAPTER  V 
OF  THE  REVOCATION  OF  WILLS 

45.  General  methods  of  revoking 41 

46.  Revocation  by  a  subsequent  will 41 

47.  Same — Does  not  revive  former  will 42 

48.  Same — When  not  revoked 43 

49.  Same— Of  lost  will 43 

50.  By  burning,  canceling,  tearing  or  obliterating 44 

51.  Same— The  act  and  intention 45 

52.  Same — Of  sound  mind  of  testator 46 

53.  Same — Presumptions  as  to  revocation 46 

54.  Same — How  effected  by  destruction,  etc 47 

55.  By  marriage 47 

56.  By  marriage  and  issue 47 

57.  Same — Implied  by  alienation  of  the  estate 48 

58.  Same — Not  effected  by  contract  or  incumbrance  by  testator  49 

CHAPTER  VI 

OF   THE    REPUBLICATION    OF    WILLS 

.59.     Republication  of  a  will 51 

60.  Same — By  a  codicil 51 

61.  Effect  of  publication 53 


Sec, 


TABLE   OF   CONTKNTS  XI 

CHAPTER  VII 

OF  THE   PROBATE  OF    WILLS 

Page 

62.  Production  of  will  for  i»rol)ate ^ 

63.  Probated  in  what  county— By  court  or  clerk,  etc 54 

64.  Same — I  )eath  of  testator  to  be  shown 55 

65.  Same — Will,    how    iiroved ^^ 

66.  Same— Form  of  will ''fl 

67.  Commission  to  take  proof — When  and  fonn 57 

68.  Return  to  commission  and  examination 58 

69.  Witness  dead  or  absent,  etc 59 

70.  Proof  to  be  reduced  to  writing 59 

71.  Hand-writing — How  proved 59 

72.  Will  admitted  against  the  evidence  of  attesting  witnesses. .  60 

73.  Proof  of  lost  will ^0 

74.  Soundness  of  testator's  mind  to  be  proven 61 

75.  Order  of  probate  and  certificate 62 

76.  Codicil  must  be  proven,  etc 63 

77.  Proof  of  nuncupative  will — Citation,  etc 63 

78.  Judgment  of  probate— Effect— Forms 64 

CHAPTER  VIII 
RECORDING  OF  WILLS 

79.  Wills  to  be  recorded — Effect  thereof 68 

80.  Same — Wills  conveying  land 68 

CHAPTER  IX 
OF  FOREIGN  WILLS 

81.  What  law  governs — Domicile 70 

82.  Same — Law  of  domicile 71 

83.  Effect  of  judgment  of  probate  in  another  state 71 

CHAPTER  X 
OF  THE  CONTESTING  OF  WILLS 

84.  Contest — Within  what  time — Limitation 72 

85.  Same— Matters  of  practice 73 

86.  The   petition 1^ 

87.  Issues  to  be  formed  and  submitted T.l 

88.  Open  and  close — Procedure 70 

CHAPTER  XI 
OF  THE  CONSTRUCTION   OF  WILLS 

89.  Authority  of  adjudged  cases 78 

90.  General  rules  of  construction 78 

91.  Words  which  pass  a  fee S3 


Xii  TABLE  OF   CONTEXTS 

Sec.  Page 

92.  Estate  for  life  or  less 85 

93.  Personal   effects — Residue — After-acquired  estate 86 

94.  Description  of  devisee  or  legatee 87 

95.  Same — "Children,"  how  construed 88 

96.  Same — Other  relations  how  named,  "Heirs,"  "Next  of  Kin," 

"Cousins,"    etc 89 

97.  Same — "Family,"  "Legal     Representatives."  etc 90 

98.  Ambiguity,  uncertainty  of  description  of  legatee 91 

99.  Interlineations  or  erasures 92 

100.  Remainders — Lapsed  legacies 92 

101.  Same — May  lapse  when 94 

102.  Contributions  by  devisees  and  legatees 96 

103.  Lineal  and  collateral  warranties 96 

CHAPTER  XII 

OF  TRUSTS  AND  TRUSTEES  CREATED  BY  WILL 

104.  Trustees — Bequest  for  public  charity 97 

105.  Words  creating  trusts 97 

106.  Trustees  appointed — When 98 

107.  Express  and  resulting  trusts 100 

108.  Same — By  court  of  chancery 101 

109.  Duty  of  trustee— Degree  of  care  required 101 

CHAPTER  XIII 

OF  ELECTION  BY  WIDOW  TO  ACCEPT  OR  RENOUNCE 
THE  WILL 

110.  Renunciation  or  acceptance  of  will  by  widow  in  Missouri..  103 

CHAPTER  XIV 

OF  PROBATE  COURTS,  THEIR  JURISDICTION,  POWERS  AND 
INCIDENTAL  MATTERS 

111.  Probate  court — Its  jurisdiction  in  Missouri 106 

112.  Jurisdiction   defined 107 

113.  Courts  of  limited  jurisdiction 107 

114.  Exclusive  jurisdiction 10!> 

115.  No  jurisdiction 110 

116.  In  habeas  corpus 112 

117.  Petition  for  writ  of  haljeas  corpus 114 

118.  Qualifications  of  probate  judge 115 

119.  Election  or  appointment  of  special  judge  of  i)ro!)ate 116 

120.  Judge  may  practice  law — When 116 

121.  Judge  disqualified 117 

122.  Probate  clerk — Appointment  and  duties 118 

123.  Incidental  duties  of  the  probate  judge 118 

124.  Expenses  of  maintaining  court 118 

125.  Salaries  119 


TABLE   OF   CONTENTS  XIU 

Sec.  Page 

126.  Terras  of  court 119 

127.  Powers  of  probate  court 120 

128.  Process — How  issued  aud  directed 121 

129.  Docljet  to  be  kept 121 

loO.  Penalty  for  refusal  of  judge,  or  clerk,  to  perform  oflicial 

duties    122 

131.  Fees  allowed  probate  court  In  Missouri 122 

CHAPTER  XV 

OF  THE  APPOINTMENT  OF  EXECUTORS  AND  AD:\IIXISTRA- 
TORS,  THEIR  BOND,  REVOCATION  OF  LETTERS,  ETC. 

132.  Executor 124 

133.  Executor  de  son  tort 125 

134.  General  administrators 126 

135.  Special   administrators  defined 127 

136.  Executors  and  administrators,  same  duties 128 

137.  Executors  cannot  act  without  letters 128 

138.  Wbat  court  may  grant  letters 129 

139.  In  what  county  letters  must  be  granted 129 

140.  To  whom  letters  may  not  be  granted 130 

141.  To  whom  letters  may  be  granted 130 

142.  Same — Letters  in  case  of  general  intestacy 131 

143.  Same — To  husband  or  wife 132 

144.  Same — When  wife  has  separate  estate 133 

145.  Same — To  distributees  or  next  of  kin 134 

146.  Citation  to  administer — Letters  to  another 135 

147.  No  letters  to  be  granted,  when,  etc 137 

148.  Proceedings  to  obtain  letters 140 

149.  Same — By  executor  or  administrator 141 

150.  Bond  of  executors  and  administrators 142 

151.  Same — Liability  on,  etc 143 

152.  Execution  of  bond — New  bond,  etc 144 

153.  Who  shall  not  be  taken  as  sureties 145 

154.  Approval  or  rejection  of  bond,  etc 145 

155.  Bond  excused  by  will — Joint  bond,  etc 145 

156.  Bond  to  be  recorded 146 

157.  Validity  and  form  of  letters 146 

158.  Same — To  be  approved  and  recorded 148 

159.  Authority  conferred  by  letters 150 

160.  Revocation  of  letters 151 

161.  Same — Statutory  grounds  therefor 1.52 

162.  Additional  bond  and  revocation  of  letters 154 

163.  Effect  of  additional  bond 1.56 

164.  Notice — When  administrator  has  left  the  state 158 

165.  Resignation  of  executor  or  administrator 1.58 

166.  Proceedings  on  revocation  of  letters,  resignation  (ir  death 

of  administrator,  etc 160 

167.  Same  161 

168.  Same — Former  administrator  required  to  settle,  etc 162 

169.  Same — Notice  and  judgment 164 


Xiv  TABLE  OF  CONTENTS 


CHAPTER  XVI 

OF  THE  RIGHTS  OF  EXECUTORS  AND  ADMINISTRATORS 
IN  THE  PROPERTY  OF  DECEDENTS 

Sec.  Page 

170.  Assets,   what  are 167 

171.  When  the  estate  vests  in  the  personal  representative 168 

172.  The  nature  of  the  Interest  of  the  representative 170 

173.  Same — When  it  becomes  his  own  property 171 

174.  Same — As  to  realty 172 

175.  His  right  to  chattels  real 174 

176.  His  right  to  chattels  personal — Division  of  chattels 175 

177.  Same — Chattels   animate 175 

178.  Same — As  to  vegetables,  trees 176 

179.  Same — Growing  crops — Emblements 176 

180.  Same — As  to  fruits,  etc 177 

181.  Chattels  inanimate 178 

182.  Same — Choses  in  action 178 

183.  Same— Fixtures   180 

184.  Same — As  to  tenants,  etc 181 

185.  Same — As  between  tenant  and  landlord 183 

186.  Same — Fixtures  as  trade  or  agriculture. .    184 

187.  Removal   of  fixtures 184 

188.  As  to  leases 185 

189.  As  to  rents 187 

190.  As  to  stocks 188 

191.  As  to  annuities 189 

192.  As  to  property  held  in  trust 189 

193.  As  to  patents 190 

194.  As  to  copyright 191 

195.  As  to  policies  of  insurance 192 

196.  As  to  apprentices 193 

197.  As  to  partnership  effects 194 

198.  As  to  goods  mortgaged 194 

199.  As  to  separate  property  of  wife 196 

200.  Same— By   statute 197 

201.  Same — When  the  wife  survives 199 

202.  Same — When  the  husband  survives 200 

203.  Donatio  mortis  causa 201 


CHAPTER  XVn 
OF  THE  INVENTORY  AND  APPRAISEMENT 

204.  The  inventory — When  and  how  made 204 

205.  Same — Certificate  of  witnesses 207 

206.  An  inventory  is  a  list,  etc 208 

207.  Same — To  include  debts  and  other  claims 209 

208.  Same — Property  allowed  the  widow 210 


TABLE. OF  CONTKNTS  XV 

Sec.  Page 

L'OO.  The  appraisement — When  and  how  niatlo 210 

210.  Additional  inventory  and  appraisement 212 

211.  Allowance  to  widow 21.3 

212.  Same — Supplying  deficiency 215 

213.  Allowance  to  minor  children  and  widower 21.") 

214.  Articles  taken  by  widow  to  be  listed 21G 


CHAPTER  XVIII 

RECOVERY  OF  CONCEALED,  EMBEZZLED.  OR  WRONGFI'LLY 
WITHHELD  ASSETS 

215.  Recovery  of  assets  wrongfully  withheld 218 

216.  Nature  of  proceeding 220 

217.  Forms  for  use  in  pleading 221 

218.  Judgment  and  effect  thereof 222 


CHAPTER  XIX 

PUBLICATION  OF  NOTICES  REQUIRED  DURING 
ADMINISTRATION 

219.  Notice  of  grant  of  letters 224 

220.  Same — By  administrator  de  bonis  non 225 

221.  Notice  where  intestate  left  no  known  heirs 225 

222.  Notice  of  final  settlement 226 

223.  Proof  of  publication,  how  made  and  preserved 226 

224.  Effect  of  publication  of  notice  on  claims  not  presented...,  227 


CHAPTER  XX 

OF  THE  SALE  OF  PERSONAL  ESTATE  BY  EXECUTOR  OR 
ADMINISTRATOR 

225.  When  personal  property  may  be  sold — Terms  of  sale 2.30 

226.  Same — When  there  are  no  known  heirs , 231 

227.  Notice  of  sale 231 

228.  Sale— How  conducted 232 

229.  Same — Postponement  of  sale 233 

230.  Sale  bill— List  of  articles  sold 233 

231.  Same— Return  of  sale  bill 234 

232.  Personalty  may  be  sold  at  private  sale,  when 235 

233.  Sale  of  property  bound  by  the  lien  of  an  execution,  etc 236 

234.  Same — Application  of  proceeds  of  sale 236 

235.  Same — When  lien  of  execution  attaches,  etc 237 

236.  Personal  property  may  be  reserved  from  sale 238 


XTl  TABLE   OF   CONTEXTS 


CHAPTER  XXI 

ACTIONS   BY  EXECUTORS  AND   ADMINISTRATORS 
Sec.  Page 

237.  Duty  of  executor  or  administrator  to  collect  debts,  etc 239 

238.  Collection,  compromise  and  disposal  of  debts,  etc 240 

239.  Suit  by,  etc.,  in  what  court 241 

240.  Where  the  action  accrues  to  deceased  before  his  death....  241 

241.  Suit  by  foreign  administrator 242 

242.  Where  the  action  accrues  after  death  of  deceased 244 

243.  Allegations  of  representative  capacity  in  pleading 245 

244.  Actions  to  collect  rents 247 

245.  Continuance  of  action  commenced  by  deceased 247 

246.  Actions  by  personal  representatives  for  wrongful  death  of 

deceased    249 

247.  Securitj'  for  costs  not  required 254 

248.  Set-off,  when  allowed 254 

249.  Same — A  few  illustrations 255 

250.  Suit  before  justice — Judgment  for  excess 256 

251.  When  the  executor  or  administrator  owes  the  deceased...  256 

252.  When  liable  for  interest,  etc 256 

253.  Administrator  may  loan  money  of  the  estate 2.57 

2.54.     Court  may  make  all  necessary  order,  etc 257 

255.     Competency  of  witnesses  in  actions  by  or  against  execu- 
tors, etc 257 


CHAPTER  XXII 
ALLOWANCE  OF  DEMANDS   AGAINST  ESTATES 

256.  Speedy  settlement  of  estate 260 

2.57.  Liability  of  executors,  etc.,  for  the  acts  of  the  deceased...  261 

2.58.  Joint  contracts  and  promises 262 

2.59.  Claim  of  child  or  near  relative  for  services,  etc 262 

260.  Classification  of  demands  against  the  estate 265 

261.  Limitation  of  demands,  etc 268 

262.  Demands,  how  exhibited 270 

263.  List  of  demands  to  be  kept — Object  of  classilicatiun,  etc...  272 

264.  Demands,  how  established — By  judgment 273 

265.  Judgments  rendered  in  lifetime  of  deceased 273 

266.  Jurisdiction,  in  what  court,  as  to  demands 274 

267.  Presenting  demand  to  probate  court 275 

268.  Same — Waiver  of  notice  by  administrator,  etc 277 

269.  Same — Affidavit  to   demand 277 

270.  Same— By  agent 278 

271.  When  the  claim  is  before  the  court,  etc 279 

272.  Payment  of  demands  without  allowance,  when 2.S0 

273.  Set-off  and  other  defense  to  demand 280 

274.  Trial  by  court  or  jury 281 

275.  Same — When  claim  is  founded  on  note,  etc 282 


^ 


TABLE   OF   CONTKNTS 


xvii 


Sec.  Page 

liTG.  When  demand  or  set-off  is  not  duo 283 

277.  Domaud  of  executor  or  administrator 284 

278.  Judgment,  how  entered,  form  thereof 285 

279.  Same — Costs,  how  adjndj,'ed 285 

280.  Same — Different  judgments,  their  effect 286 

281.  Abstract  of  demands  allowed  to  be  kept  by  clerk  or  judge  288 

282.  Effect  of  classitication  of  demand 289 

283.  Allowance  of  demand  when  executor  Is  temporarily  absent  289 

284.  Judtjmeut  of  allowance,  etc.,  may  be  set  aside,  how  and 

when   290 

CHAPTER  XXIII 

DUTIES  OF  EXECUTORS  AND  ADMINISTRATORS  RESPECT- 
ING THE  SALE  AND  CONVEYANCE  OP  REAL  ESTATE 

285.  Sale  of  land  under  power  contained  in  a  will 292 

286.  Same — By  whom  the  power  may  be  executed 294 

287.  Same — Form  of  deed -'!»."i 

288.  When  the  sale  is  for  a  specific  purpose 2'.i(j 

289.  Executory  contract  by  deceased  for  purchase  of  land 2!t7 

290.  Same — Petition — Order  of  sale 2!t7 

291.  Same — Report  and  confirmation  of  sale -''.i;> 

292.  Contract  for  sale  of  land  by  deceased — Enforced -ino 

293.  Same — Order  of  court  and  deed ::oi 

294.  Same — Case  may  be  transferred  to  circuit  court .■!<»2 

295.  Same — Proceeding  by  executor,   etc ."ioi 

296.  Specific  performance  of  contract  enforced oU4 

297.  Contract  may  be  cancelled,  etc oOo 

CHAPTER  XXIV 

OF  THE  SALE  OF  REAL  ESTATE  FOR  PAYMENT  OF  DEBTS 
AND  LEGACIES 

298.  Jurisdiction  of  probate  court 30G 

299.  Disposition  of  incumbered  real  estate 307 

300.  What  real  estate  may  be  sold  to  pay  debts 310 

301.  The  petition  therefor  and  exhibits ol2 

302.  Same  312 

303.  Notice  of  the  petition— Order  of  sale 'Mi 

304.  Hearing  of  the  petition — Order  of  sale 310 

305.  Same — Necessity  of  an  order  of  sale 318 

306.  Appraisement  of  real  estate 319 

307."  Notice  of  sale 320 

308.  Sale,  how  and  where  made 321 

309.  Report  of  sale 32;; 

310.  Approval  of  report  and  deed 324 

311.  Deed  made  by  succeeding  administrator,  etc 32S 

312.  Effect  of  deed 328 

313.  Court  may  order  sale  of  land  without  petition 329 

Kel.Mo.P.(}.— b 


XVlll  TABLE   OP   CONTENTS 

Sec.  Page 

314.  Lands  may  be  divided  into  town  lots,  etc 330 

315.  Personal  estate  may  be  reserved  and  real  estate  sold 330 

316.  Wlien  the  real  estate  is  bound  by  the  lien  of  a  judgment 

or  attachment 332 

317.  Same — When  bound  by  several  liens,  etc 332 

31S.     Sale  of  leasehold  interests 334 


CHAPTER  XXV 
OF  THE  PAYMENT  OF  DIvBTS  AND  LEGACIES 

319.  Payment  of  debts,  in  what  order 335 

320.  Same — Receipts  should  be  taken,  etc 336 

321.  Payment  of  legacies — Different  kinds  of  legacies 336 

322.  When  a  legacy  will  lapse 337 

323.  Assent  of  executor  to  legacy 338 

324.  Cumulative  legacies 339 

325.  In  lieu  of  dower 339 

326.  Legacies  to  creditors  in  satisfaction  of  debts 340 

327.  Legacy  by  creditor  to  his  debtor 341 

328.  Interest  on  legacies 341 

329.  Legatee  entitled  to  increase,  etc 342 

330.  Time  of  payment  of  legacy 342 

331.  Debts  should  be  paid  before  legacies 343 

332.  Refunding  bond  and  receipts,  etc 343 

333.  Proceeding  against  executor,  etc.,  for  failing  to  pay  legacy  344 

CHAPTER  XXVI 

OF  THE  DISTRIBUTION  OF  ESTATES,  AND  INCIDENTAL 
MATTERS 

334.  When  the  widow  takes  the  whole  estate 345 

335.  Who  are  entitled  to  distribution 346 

336.  Same— Share  of  widow 347 

337.  Same— Children  of  half  blood— Collateral  kindred 348 

338.  Same— When  they  take  per  capita  or  per  stirpes 350 

339.  Same — Advancement — How  considered 350 

340.  Distribution  of  estate  not  bequeathed 352 

341.  Bastards— Illegitimate  children  inherit 352 

342.  Colored  persons,  entitled  to  distribution 353 

343.  Distribution  of  property  in  kind,  or  the  proceeds  thereof. .  353 

344.  Same — Appointment   of  commissioners 354 

345.  Notice  of  petition  for  partition 354 

346.  Rights  of  parties  to  be  determined — Order  of  partition 355 

347.  Same — By  whom  sold 356 

348.  Forms  used  in  making  partition 356 

349.  When  debts  have  been  paid  out  of  real  estate 357 

350.  Disputed  questions — How  settled 358 

351.  Appointment  and  duties  of  guardian  ad  litem  for  minors. .  358 


TABLE  OF  CONTEXTS  XIX 

Sec.  Page 

.')52.  RefiindiiiK  by  legatee  or  distributee 359 

353.  Proceedings  against  distributee  or  legatee :>(J0 

354.  Distribution  or  allowance  for  support  of  children 3(Jl 

355.  Widow's  share  of  rents 362 

356.  DisiK)sition  of  legacy  or  distributive  share  when  not  called 

for    362 

357.  Share  called  for  within  twenty-one  years .''>(>■{ 

358.  Estate  escheats  36:! 

359.  Administration  of  estate  where  absent  seven  years 364 

CHAPTER  XXVII 

ESTATES    OF    NON-RESIDENTS,    HOW    ADMINISTERED    AND 
DISTRIBUTED 

.'^.60.  What  law  governs  in  the  tx'ansfer  of  property 365 

361.  Rights  of  foi-eign  administrator .366 

362.  Law  of  doniicil  governs  the  distrilnition  of  personal  estate  368 

363.  Same — As  to  both  real  and  personal  estate  after  payment 

of  local  debts 369 

364.  When  the  estate  is  insolvent 370 

365.  Same — All  creditors  to  share  equally,  etc 371 


CHAPTER  XXVIII 

OF  THE   SETTLEMENT   OF   THE   ACCOUNTS   OF  EXECUTORS 

AND  ADMINISTRATORS,  ANNUAL  AND  FINAL 

SETTLEMENTS 

366.  Settlement,  when  to  be  made 372 

367.  Docket  to  be  kept  and  published 373 

368.  Docket  to  be  called  for  settlement — Citation  to  be  issued..  373 

369.  Penalty  for  failing  to  make  settlement 374 

370.  What  to  be  charged  in  semi-annual  settlement 375 

371.  Same — With  interest  received 376 

.372.     What  to  be  credited  in  such  settlement 377 

373.  Receipts,  vouchers,  proof  of  payment  of  debts 37s 

374.  Form  of  semi-annual  settlement 379 

375.  Nature  and  effects  of  such  settlement 3S1 

376.  Duty  of  court  to  order  payment  of  debts 3S1 

377.  Execution  to  be  issued '.',s:', 

378.  Scire  facias  or  suit  on  bond ;>8.) 

379.  Final  settlement  to  be  made — Notice  thereof,  how  given...  385 

380.  Form  of  final  settlement 387 

381.  Uncollected  accounts,  etc.,  to  be  delivered  to  creditors  or 

distributees ;'.89 

382.  Discharge  of  executor  or  administrator ."tJiO 

383.  Opening  final  settlement .■!91 

384.  Final  discharge  of  administrator 392 

385.  Proceedings  by  creditor  after  final  settlement 393 


XX  TABLE   OF   CONTENTS 


CHAPTER  XXIX 

OF  PARTNERSHIP  ESTATES 
Sec.  Page 

386.  Rights  of  parties,  at  common  law,  on  death  of  a  partner. .  395 

387.  When  the  partnership  property  is  insufficient  to  pay  the 

debts   396 

388.  Individual  estate  liable  for  firm  debts 397 

389.  Administration  by  surviving  partner 397 

.390.     The  bond  required  of  surviving  partner 398 

391.     Duties  and  liabilities — Inventory 399 

.392.     Allowance  and  payment  of  demands 400 

.393.     Classification  of  demands 401 

.394.     Settlements  by  surviving  partner 402 

395.  Administration  of  partnership  effects  by   exeeutur  or  ad- 

ministrator of  deceased  partner 402 

396.  Inventory — When  and  how  made 403 

397.  Same — Disposal  of  assets 403 

398.  Demands  to  be  exhibited,  allowed  and  classed 404 

399.  Proceedings  same  as  in  settlement  of  estates 404 

400.  Bond  of  administrator  taking  charge  of  partnership  estate  404 
40L     Party  administering  may  take  an  appeal 405 


CHAPTER  XXX 
OF  PUBLIC  ADMINISTRATORS 

402.  Election,  oath,  bond,  term  of  office  and  removal 406 

403.  What  estates  and  when  he  may  administer 407 

404.  To  give  notice  of  having  taken  charge  of  estate 409 

405.  Suit  for  collection  of  debts 410 

406.  General  powers,  duties  and  liabilities  same  as  other  admin- 

istrators     411 

407.  May  close  administration  of  unsettled  estate  after  term  of 

office 411 

CHAPTER  XXXI 

OF  PROCEEDINGS  AND  ACTIONS  AGAINST  EXECUTORS  AND 
ADMINISTRATORS  AND  THEIR  SURETIES,  ETC. 

408.  Executors  and  administrators,   when  jointly  or  severally 

liable    414 

409.  Degree  of  care  required  by  them 415 

410.  When  personally  liable  on  promise  to  pay  debts,  etc 416 

411.  Proceedings  against  administrators  and  sureties 416 

412.  Notice — How  given  of  the  proceeding 418 

413.  Trial  and  judgment 418 

414.  Suit  on  the  bond — Statutory  provisions 419 

41.5.     Decisions  in  relation  to  actions  on  bcmds 420 

416.     Same    422 


TABLB   OF   CONTENTS  X^l 

CHAPTER  XXXII 

OF  APPEALS  _ 

Sec.  rage 

417.  When  appeals  are  allowed 425 

418.  Within  what  time,  and  how  tal<en,  affidavit  and  bond 426 

419.  Effect  of  appeal— Duty  of  clerk  to  send  up  transcript 428 

CHAPTER  XXXIII 
OF  WIDOW'S  DOWER  IN  REAL.  ESTATE  IN  MISSOURI 

420.  Dower— Its  nature 430 

421.  In  what  estate  or  property  dower  attaches 4;}2 

422.  Widow's  right  of  election  in  matter  of  dower 434 

423.  Same — Election — Notice  to  widow 436 

424.  Same — Within  what  time  and  how  made 437 

425.  Widow's  right  of  election  to  take  a  child's  sluii-e  in  lieu  of 

dower  439 

426.  Same— Effect  of  election 440 

427.  How  dower  may  be  avoided  or  released 441 

428.  Same— By  jointure 441 

429.  Same — By  divorce  or  adultery 442 

430.  Same— By  estoppel 442 

431.  Proceedings  by  recovery  or  assignment  of  dower 443 

432.  Dower  in  personalty 443 

433.  Widower  may  inherit 444 

CHAPTER  XXXIV 
OF  HOMESTEAD  AND  ASSIGNxMEXT  THEREOF 

4.34.  Nature  and  extent  of  homestead 445 

435.  Effect  of  wife's  claim  thereto 446 

436.  Housekeeper  or  head  of  a  family 446 

437.  Estates  to  which  homestead  attaches 447 

438.  Same — As  between  debtor  and  creditor 44S 

439.  Homestead  of  widow  to  vest  in  minor  children 449 

440.  Changing  homestead 450 

441.  Rights  of  widow  and  children  to  homestead 4.51 

442.  Same — Only  a  life  interest 453 

443.  Abandonment  of  homestead 454 

444.  Homestead  and  dower  set  off 454 

CHAPTER  XXXV 

THE  PRESENT  VALUE   OF  DOWEK,  CURTESY  AND  ESTATES 
FOR  LIFE,  HOW  ASCERTAINED 

445.  When  the  widow  has  dower 459 

446.  Mortality  tables 460 

447.  Value  of  dower  ascertained 462 


XXii  TABLE   OF   CONTENTS 


CHAPTER  XXXVI 

OF  THE  APPOINTMENT  OF  GUARDIANS  AND  CURATORS 
Sec.  P^S^ 

448.  Definitions  and  general  observations 46?. 

449.  Same — Testamentary   guardians 465 

450.  Same — Tlie  ward 465 

451.  Who  may,  and  wlio  may  not,  be  guardian  or  curator 466 

452.  For  whom  and  when  to  be  appointed 466 

453.  Proceedings  for  selection  of  curator 468 

454.  When  ward  may  select  another  guardian  or  curator 469 

455.  Public  administrator— Public  guardian 469 

456.  Appointment,  how  made 470 

457.  The  bond 473 

458.  Transfer  of  guardianship 475 


CHAPTER  XXXVII 
GENERAL  POWERS  AND  DUTIES  OF  GUARDIANS 

459.  The  guardian  is  entitled  to  custody  and  control  of  ward. . .  476 

460.  Same — Habit  of  industry  to  be  enforced 477 

461.  Management  of  ward's  estate 477 

462.  Prosecute  and  defend  for  ward 478 

463.  The  guardian  must  collect  and  control  ward's  estate 479 

464.  Duties  of  guardian 479 

CHAPTER  XXXVIII 
INVENTORY  AND  APPRAISEMENT 

465.  Inventory  480 

466.  Appraisement 481 

467.  Concealed  or  embezzled  goods  or  effects,  how  recovered...  481 

CHAPTER  XXXIX 

SALE  OF  REAL  ESTATE  OF  MINORS  BY  GUARDIAN  OR 
CURATOR 

468.  For  what  purpose  it  may  be  sold 483 

469.  Petition  and  order  of  sale 483 

470.  Notice  and  terms  of  sale — Report  of  sale 485 

471.  Sale,  how  to  be  conducted — Validity  thereof 487 

472.  Guardian's  deed 488 

47.3.     Sale  of  land  for  purpose  of  reinvestment 491 

474,  Same — Order  of  sale — Additional  bond 492 

475.  Sale  and  deed 493  % 


TABLE  OF  CONTENTS  XXIU 


CHAPTER  XL 

OF  NON-RESIDENT  OR  FOREIGN  GUARDIANS   AND  WARDS 

Sec.  Page 

476.  S<\le  of  land  of  non-resident  minor 495 

477.  Removal  of  estate  by  foreign  guai'dian 496 

478.  Same — Is  matter  of  comity  between  states 497 

479.  Domicile  of  ward,  conflict  of  guardianship 497 

4S0.     Same — Place  of  guardianship — Distribution  of  estate 498 


CHAPTER  XLI 

OF  LOANING  MONEY  AND   CHANGING   INVESTMENT?  OF 
WARD'S  ESTATE 

481.  Money  to  be  loaned  on  real  estate  security 500 

482.  Same— Rate  of  interest 501 

483.  Changing  investment  of  ward's  estate 502 

484.  Mortgage  on  homestead,  how  paid 503 


CHAPTER  XLII 

ANNUAL    ACCOUNTS    AND     SETTLEMENTS    OF    GUARDIANS 
AND  CURATORS 

485.  Docket  to  be  called — When 504 

486.  Settlement,  when  to  be  made — Allowances  for  support  of 

ward    505 

487.  Account  of  expenditures — Receipts 506 

488.  Form  of  account 507 

489.  Discharges,  acquittances  and  receipts 508 


CHAPTER  XLin 

FINAL    SETTLEMENT    AND    DISCHARGE    OF    GUARDIAN  OR 
CURATOR  AND  MATTERS  CONNECTED  THEREWITH 

490.  Final  settlement — When  to  be  made 509 

491.  Settlement  on  death  of  ward 509 

492.  Same — In  case  of  non-resident  ward 510 

493.  Final  settlement  account,  and  notice  thereof 510 

494.  Eftect  of  final  settlement 513 

495.  Liability  of  ward  to  guardian 514 

496.  Final  discharge  of  guardian 515 

497.  Compensation  of  guardian 517 

498.  Removal,  resignation,  etc.,  of  guardian 517 

499.  Appeals    51S 


XXIV  TABLE    OF   CONTENTS 


CHAPTER  XLIV 

GUARDIANSHIP  OF  FRIENDLESS  CHILDREN 

Sec.  Page 

500.  Incorporated  society  may  act,  when 519 

501.  The  application 519 

502.  Friendless  child,  how  disposed  of 521 

503.  Appeal  will  lie 522 

CHAPTER  XLV 
OF   THE   GUARDIANSHIP   OF   PERSONS   OF   UNSOUND    MIND 

504.  Probate  court  to  inquire  by  jury  as  to  insanity 523 

505.  Notice  to  persons  informed  against — Record  entries 525 

506.  Appointment  of  guardian,  costs  how  paid — New  trial 527 

507.  Bond— Its  form 527 

508.  Duties  of  guardian 528 

509.  Inventory  of  estate 529 

510.  Restraint  of  ward 529 

511.  Notice   of  appointment 530 

512.  Allowance  of  demands 530 

513.  Suits  by  and  against  insane  ward 531 

514.  Sale  of  real  estate 5.31 

515.  Order  of  sale,  terms  of  sale,  etc 532 

516.  Sale  for  re-investment — Of  non-residents 532 

.517.     Mortgage,  etc.,  to  be  approved — Effect  of  conveyance 532 

518.  Settlement  by  guardian 532 

519.  Same — On  removal  or  death  of  guardian 533 

520.  Death  of  insane  ward 533 

.521.     Support  granted  to  insane  ward  by  county  court 534 

522.  Proceedings  when  ward  has  recovered  his  mind 534 

523.  Insane  may  be  confined 535 

524.  Expenses  when  ward  is  sent  to  asylum 530 

.525.     County  to  be  repaid  how  and  when 536 

526.  Curator  for  non-resident  insane 536 

527.  Resignation  of  guardian  or  curator 536 

CHAPTER  XLVI 

ADOPTION  OF  CHILDREN 

528.  Child  adopted,  how  in  Missouri 538 

.529.     Changing  name  of  adopted  child 540 

530.  Adoption  of  child  under  seven  years  of  age 541 

531.  County  court  may  award  custody  of  children 542 

CHAPTER  XLVn 

APPRENTICES 

.532.     Minors  may  be  bound 543 

53.3.     Incompetency  of  parents,  how  determined 544 

534.     The  indenture  of  apprenticeship 545 


TABLE   OF   CONTENTS  XXV 

Sec.  Page 

535.  Treatment  of  apprentices — Complaint  against  the  master. .  547 

536.  Proceedings  against  apprentice 548 

537.  Duty  of  the  court  on  the  hearing,  etc 549 

538.  Proceedings  on  the  discharge  of  apprentice rj.">0 

539.  Enticing  away  and  harboring 550 

540.  Removal  from  the  state  not  allowed 551 

o^l.     The  law  applies  to  whom 551 

CHAPTER  XLVIII 

COLLATERAL  INHERITANCE  TAX 

.542.  Estates  subject  to  inheritance  tax 5.52 

543.  Tax,  when  due  and  payable 555 

544.  By  whom  collected  and  how  disposed  of 555 

545.  Tax  on  remainders,  reversions,  etc 5.56 

546.  Adniiuistrators  must  retain  tax,  when 557 

547.  Proportion  of  tax  repaid  to  legatee 558 

548.  Duty  of  executor  when  real  estate  is  subject  to  tax 558 

549.  Probate  court  to  appoint  appraiser 558 

550.  Report  of  appraiser 559 

551.  Appeal  and  certiorari 559 

552.  State  auditor  may  have  reappraisal 560 

553.  Appraiser  guilty  of  misdemeanor 561 

554.  Jurisdiction  of  probate  court — Appeal 561 

555.  State  auditor  to  furnish  books  and  forms 561 

556.  Probate  judge  to  make  report 562 

557.  Proceedings  to  collect  tax 562 

558.  Collector's  receipt,  when  given 563 

559.  Fees  of  collector 563 

560.  Forms  o63 

TABLE  OF  CASES  CITED 
(Page  579) 


INDEX 

(Page  605) 

t 


MISSOURI  PROBATE  GUIDE 

FOURTH  EDITION 


CHAPTER  I 
OF   THE   POWEK    AND  CAPACITY   TO  MAKE   WILLS 

§  1.  Origin  of  wills. 

2.  Definition. 

3.  Nature  of  a  will. 

4.  Codicils. 

5.  Testamentary   capacity — In   general. 

6.  Infancy. 

7.  Coverture. 
S.  Alieuat^e. 

9.  Deaf  and  dumb. 

10.  Mental  incapacity. 

11.  Idiocy. 

12.  Lunacy. 

13.  Senile  dementia. 

14.  Drunkenness. 

15.  Duress. 

16.  Fraud. 

17.  Undue  influence. 

18.  Conviction  for  crime. 

19.  Same. 

§  1.  Origin  of  Wills. — Law^s  governing  the  testamen- 
tary control  of  property,  while  a  part  of  the  civilization  of 
the  nations  of  Eastern  Europe  and  Western  Asia  long  be- 
fore the  development  of  the  Roman  Empire,  did  not  reach 
any  great  refinement  imtil  they  became  the  especial  study 
and  care  of  the  methodical  Roman  jurist  and  codifier.  The 
Roman  Codes  however,  had  but  little  efifect  on  our  early 
English  common  law,  especially  in  regard  to  wills  and  the 
administration  of  the  estates  of  deceased  persons.  This 
was  largely  due  to  the  communal  form  of  village  govern- 
ment that  existed  among  the  Angles,  the  Jutes  and  the 
Saxons  at  the  dawn  of  authentic  history,  placing,  as  it  did, 
-     Kel.Mo.P.G.— 1 


2  CAPACITY  TO   MAKE   A  WILL  §  2 

such  title  to  real  estate  as  there  was  and  to  the  great  bulk 
of  personal  property  in  the  commune,  leaving  to  the  in- 
dividual at  his  death  little  to  justify  the  existence  of  a  will. 
The  feudal  barons  builded  their  authority  upon  the  decay 
of  the  ancient  village  and  tribal  governments,  and  con- 
tinued, in  a  measure,  the  old  communal  organization  within 
the  manor,  evolving  a  social  scheme  that  left  but  scant  op- 
portunity and  little  necessity  for  the  development  of  what 
we  now  know  as  probate  law.  At  the  time  of  the  Norman 
Conquest  testamentary  control  over  personal  property  ex- 
isted to  a  limited  extent  only;  for,  if  a  man  died  leaving 
a  wife  and  children  his  personal  estate  was  divided  into 
three  equal  parts,  one  of  which  went  to  his  children  or  lineal 
descendants,  another  to  his  wife,  and  the  third  was  at  his 
own  disposal  by  will.  Or,  if  he  died  without  issue,  the 
wife  took  one  half ;  and  if  he  left  children  but  no  wife,  one 
half  went  to  them,  and  he  might  bequeath  the  other.  But 
if  he  had  neither  wife  nor  children  he  could  dispose  of 
the  whole.  Blackstone,  after  exhaustive  research,  states 
that  no  one  has  a  natural  right  to  be  the  heir  of  another, 
no  matter  how  close  may  be  the  ties  of  blood ;  nor  has  any 
one  the  natural  right  to  control  the  disposition  of  his  prop- 
erty after  his  death.  The  right  to  devise  real  estate  did 
not  exist  in  England  until  it  had  been  expressly  conferred 
by  the  Statute  of  Wills,  the  provisions  of  which  have  been 
substantially  adopted  in  the  American  States.  Therefore 
it  may  be  said  that  the  power  to  make  wills,  the  manner 
of  executing  them,  and  their  efficacy  is  governed  by  stat- 
utory law.^ 

§  2.  Definition. — A  last  will  or  testament  is  defined  to 
be  the  legal  declaration  of  a  party's  intention  touching  the 
disposition  of  his  property  to  take  effect  after  his  death. 
The  person  making  the  will  is  the  testator ;  the  person  to 
whom  any  personal  property  or  money  is  given  by  will  is 
called  a  legatee ;  and  the  gift  a  legacy  or  bequest.  When 
real  estate  is  given  it  is  a  devise;  the  person  to  whom  it  is 
given  is  a  devisee,  and  the  testator  is  then  called  a  devisor. 
Real  estate  is  devised,  personal  property  is  bequeathed,  or 
given  as  a  legacy.  The  residuary  devisee  or  legatee  is  the 
person  to  whom  the  remainder  of  the  real  or  personal  estate 

1  Ferguson  v.  Gentry,  206  Mo.  189,  104  S.  W.  104;  Briant  v.  Gar- 
rison, 150  Mo.  655,  52  S.  W.  361 ;  Stowe  v.  Stowe,  140  Mo.  504,  41 
S.  W.  051. 


§  4  CAPACITY    TO    MAKE    A    WILL  3 

is  devised  or  bequeathed,  after  specific  devises  or  bequests 
have  been  made. 

§  3.  Nature  of  a  Will. — One  of  the  characteristics  of  a 
will  is,  that  it  does  not  take  effect,  nor  are  there  any  rij^jhts 
acquired  under  it,  until  the  death  of  the  testator,  and  its 
construction  depends  upon  the  law  as  it  then  stands;  there- 
fore, a  statute  passed  after  the  making  of  the  will,  but  be- 
fore the  death  of  the  testator  by  which  the  law  is  chans:ed 
will  operate  upon  the  will.-  A  will  is  under  the  exclusive 
control  of  the  testator,  and  is  not  operative  for  any  purpose 
until  his  death  ;  it  is,  therefore  in  all  cases  a  revocable  in- 
strument, even  should  it  in  terms  be  made  irrevocable.  A 
deed  is  distinguished  from  a  will  in  that  the  one  takes  ef- 
fect immediately  upon  its  execution  and  delivery  during 
the  lifetime  of  the  grantor;  the  other  after  his  death. ^  A 
deed  cannot  be  made  to  take  the  place  of  a  will,  yet  an  in- 
strument may  be  so  framed  and  executed  as  to  operate  as 
a  deed  in  one  part,  and  as  a  will  in  another.*  But  in  gen- 
eral the  nature  and  effect  of  an  instrument  cannot  be 
changed  by  the  manner  in  which  it  is  executed ;  for  ex- 
ample, if  an  instrument  in  the  form  of  a  will  should  be 
sealed  it  cannot  for  that  reason  be  considered  a  deed.  It 
seems  that  where  an  instrument  is  so  inartificially  drawn 
as  to  contain  the  necessary  phraseology  both  of  a  deed  and 
of  a  will,  and  its  execution  is  properly  perfected,  it  should  be 
regarded  as  a  will  or  deed  according  to  the  intention  of  the 
maker,  however,  informal  it  may  be  in  form  or  expression. 
In  general  the  form  of  the  instrument  will  determine  its  char- 
acter, unless  a  contrary  intention  is  apparent  on  its  face.'^ 
If  husband  and  wife  join  in  the  execution  of  a  joint  will 
disposing  of  the  husband's  property,  it  may  be  probated, 
on  his  death,  as  his  several  or  separate  will." 

§  4.  A  Codicil  is  generally  understood  to  be  an  addi- 
tion to,  or  explanation  of,  a  will,  and  is  to  be  taken  as  a  part 
of   it,   whether  its   purpose   be  to  explain,   alter   or   make 

2  O'Brien  v.  Ash.  1G9  Mo.  2S3,  G9  R.  W.  8 ;  T.overen  v.  Lamprey, 
2  Fost.  (22  N.  H.)  4:U ;    Trice  v.  Taylor,  28  Pa.  95,  70  Am.  Dec.  105. 

3  Terry  v.  Glover,  2:55  Mo.  544,  139  S.  W.  387. 

4  Robinson  v.  Sclily  &  Cooper,  6  Ga.  515:  Taylor  v.  Kelly.  ?,1  Ah\. 
59,  68  Am.  Dec.  150. 

c  .Miller  v.  Holt,  G8  Mo.  584 ;  Cross  v.  Ilocb,  149  Mo.  325,  50  S.  W. 
786. 

0  Allen  V.  Allen,  28  Kan.  18. 


4  CAPACITY   TO    MAKE    A   WILL  §  5 

some  additions  thereto,  or  subtractions  therefrom.  There 
may  be  several  codicils  to  one  will ;  but  the  will  and  all 
codicils  relating  to  it  must,  in  general,  be  read  as  one  entire 
instrument.  A  codicil  may  republish  or  revoke  a  will,  and 
it  may  give  testamentary  effect  to  an  instrument  otherwise 
inoperative,  as  a  will.''  The  term  "will"  is  declared  by 
statute  to  include  testaments  and  codicils  as  well  as  wills.* 
A  codicil  must  be  executed  with  precisely  the  same  formali- 
ties as  a  will. 

§  5.  Testamentary  Capacity. — A  Missouri  court  has  said 
that  the  state  concedes  to  the  testator  the  right  to  dispose 
of  that  which,  without  the  Statute  of  Wills  and  the  Stat- 
ute of  Descents,  would  belong  to  the  state."  This  conces- 
sion is  only  made  to  persons  of  sound  mind  and  of  testa- 
mentary capacity ;  these  alone  can  make  a  valid  will. 
Mental  soundness  does  not  alone  determine  the  question 
of  testamentary  capacity  for  a  partial,  but  not  entire  dis- 
ability may  arise  from  infancy,  coverture  and  alienage. 

§  6.  Infancy. — The  age  at  which  persons  are  allowed 
to  dispose  of  their  property,  by  will,  is  fixed  by  statute,  but 
the  laws  of  the  several  states  are  not  uniform  on  this  point; 
the  period  of  testamentary  majority  ranging  from  twenty- 
one  in  both  male  and  female  in  some  states,  down  to  four- 
teen years  in  others.  In  some  of  the  states,  a  difference  is 
made  between  the  ages  at  which  persons  may  make  a  will 
of  real  estate,  and  that  at  which  they  may  make  a  will  of 
personal  estate ;  and  again  a  difference  is  made  in  some 
states  as  to  testamentary  age  between  males  and  females. 

In  Missouri,  males,  twenty-one  years  of  age  and  upward 
may  devise  property,  real  or  personal,  and  all  interest 
therein,  subject  to  the  widow's  dower  and  homestead  rights, 
if  there  be  a  widow. ^"^  Every  male  person  over  the  age  of 
eighteen  years,  and  possessing  in  other  respects  testamen- 
tary capacity,  may  bequeath  personal  property,  subject  to 
the  widow's  statutory  rights. ^^  A  married  or  unmarried 
woman,  above  the  age  of  eighteen  years,  may  provide  for 


I  Harvy  v.  Chouteau,  14  Mo.  5S7,  55  Am.  Dec.  120. 

8  Rev.  St.  1909,  §  580. 

9  Briant  v.  Garrison,  150  Mo.  G55,  52  S.  W.  o61 ;    O'Brien  v.  Ash, 
J  69  Mo.  283,  69  S.  W.  8. 

10  Rev.  St.  1909,  §  5:55. 

II  Rev.  St.  1909,  §  535. 


§  7  CAPACITY    TO    MAKE   A    WILL  5 

the  disposition  of  her  property,  real  or  personal,  by  last  will, 
subject  to  the  husband's  right  as  to  curtesy. ^- 

The  iiusband  cannot  sell,  mortgage  or  alienate  the  home- 
stead unless  Ihe  wife  joins  in  the  conveyance ;  neither  can 
he  by  will  deprive  her  and  the  minor  children  of  their 
right  to  it.^'^  Nor  can  the  wife,  by  will,  deprive  the  hus- 
band of  his  estate  by  the  curtesy  in  her  estate, ^^  but  he 
may  sell  and  convey  his  estate  by  the  curtesy,  after  her 
death;  ^^  or  accept  an  income  given  by  her  will  in  lieu  of 
curtesy.^® 

It  will  be  observed  that  no  person  who  has  not  attained 
the  age  of  eighteen  years,  whether  male  or  female,  married 
or  unmarried,  can  make  a  valid  will  for  any  purpose ;  for 
until  then  testamentary  disability  of  infants,  is  entire.  But 
when  an  infant  possessing  sufficient  discretion,  has  attained 
the  age  prescribed  by  statute,  he  or  she  may  make  a  will 
without  or  against  the  consent  of  either  tutor,  father,  guard- 
ian or  husband.^^ 

There  is  an  obvious  tendency  in  the  American  States  to 
adopt  the  uniform  rule  prescribed  by  the  English  Statute 
of  Wills, ^^  which  fixes  the  age  at  which  a  person,  whether 
male  or  female,  may  make  a  will,  of  real  or  personal  estate, 
at  twenty-one  years. 

§  7.  Coverture. — In  many  of  the  states,  as  in  England, 
coverture  is,  to  a  greater  or  less  extent,  a  testamentary 
disability;  but  the  tendency  evidently  is  very  strong  in 
this  country,  in  the  direction  of  removing  all  property  dis- 
abilities attaching  to  married  women. ^'^  And  they  may,  in 
Missouri,  as  we  have  shown  in  the  preceding  section,  dis- 
pose of  their  property  by  will.  A  married  woman  may 
carry  on  business,  contract  and  be  contracted  with,  sue  and 

12  Rev.  St.  1909,  §  5.36. 

13  Rev.  St.  1909,  §§  6704-6708;  Bogart  v.  Bogart,  138  Mo.  419, 
40  S.  W.  91 ;  Ball  v.  Ball,  165  Mo.  312,  65  S.  W.  552 ;  Steepler  v. 
Silverberg,  220  Mo.  258,  119  S.  W.  418;  West  v.  McMullen,  112  Mu. 
405.  20  S.  W.  628. 

1*  Rev.  St.  1909.  §  536;  Soltan  v.  Soltan,  93  Mo.  307,  6  S.  W.  95; 
easier  v.  Gray,  159  Mo.  588,  60  S.  W.  1032 ;  Waters  v.  Herboth,  178 
Mo.  106,  77  S.  W.  305. 

16  Miller  v.  Quick,  158  Mo.  495,  59  S.  W.  955. 

10  Bank  of  Commerce  v.  Chambers,  96  Mo.  459,  10  S.  W.  38. 

17  Noble  v.  Enos,  19  InU.  72. 

18  1  Vict.  c.  26. 

i»  Coughlin  V.  Ryan,  Adm'r,  43  Mo.  99,  97  Am.  Dec.  375. 


6  CAPACITY   TO    MAKE    A    WILL  §  8 

be  sued  without  joining  her  husband,  and  in  some  cases, 
may  invoke  the  protection  of  homestead  and  exemption 
laws.-"  Formerly  a  wife  could  not  sue  her  husband  at  law, 
but  might  do  so  in  equity.  It  has  been  held  in  Missouri 
that  she  may  now  sue  her  husband  either  at  law  or  in  equi- 
ty.^^  The  husband  may  make  a  promissory  note  to  his  wife 
which  she  may  endorse  and  transfer  to  another,  and  he  may 
assign  a  cause  of  action  to  her  by  parol. -- 

§  8.  Alienage. — An  alien  is  a  person  born  in  a  foreign 
jurisdiction  who  has  not  been  naturalized,  and  whose  par- 
ents were  not  citizens  or  subjects  of  the  United  States. 
The  disability  of  such  a  person  is,  at  common  law,  almost 
entire.  He  could  not,  in  general,  acquire  title  to  real  es- 
tate by  descent  or  other  mere  operation  of  law ;  but  he 
could  take  land  by  devise  or  purchase  and  hold  the  same  or 
grant  it,  as  against  all  the  world,  except  the  state  or  sov- 
ereignty ;  and  as  against  the  state  until  an  inquest  of  office 
found,  or  some  equivalent  act  of  the  legislature.  The  law 
would  not  permit  him  to  transmit  property  by  hereditary 
descent,  and  he  had  no  inheritable  blood ;  therefore,  upon 
his  death,  his  lands  instantly,  and  of  necessity,  without  any 
inquest  of  office,  escheated  to  the  state. -^ 

In  many  of  the  states  the  disabilities  of  aliens  have  been 
very  much  modified  by  statute  enactment,  or  constitutional 
provisions  (their  right  to  hold  or  transmit  property  being 
regarded  as  wholly  within  the  control  of  state  authority), 
so  that  in  some  states  they  may  hold  or  grant  lands  with- 
out restriction,  while  in  others  residence  or  a  declaration  of 
intention  to  become  a  citizen  of  the  United  States  is  re- 
quired. 

But  the  civil  privileges  conferred  upon  aliens  by  state 
authority,  are  strictly  local,  and  until  a  foreigner  is  duly 
naturalized  according  to  the  act  of  Congress,  he  is  not  a 
citizen  of  the  United  States,  and  is  not  entitled  in  any  other 
state,  to  any  other  privileges  than  are  allowed  by  the  laws 

2  0  Rev.  St.  1909,  §  S304. 

21  Huss  V.  Culver,  70  Mo.  App.  514;  Niemeyer  v.  Niemeyer,  70 
Mo.  App.  609;  Reed  v.  Painter,  145  Mo.  341,  46  S.  W,  10S9 ;  Long 
V.  Martin,  71  Mo.  App.  569;  Montgomery  v.  Montgomery,  142  Mo. 
App.  481,  127  S.  W.  lis. 

2  2  Wisdom  V.  Slianklin,  74  Mo.  App.  428;  Niemeyer  v.  Niemeyer, 
70  Mo.  App.  609 ;  .Jenkins  v.  Covenant  Life  Ins.  Co.,  79  Mo.  App.  65 ; 
Sanguinett  v.  Webster,  153  Mo.  343,  54  S.  W.  563. 

23  1  Williams  on  Ex.  11,  note. 


§  9  CAPACITY   TO    MAKE    A    WILL  7 

of  that  state  to  aliens  in  his  situation.  In  Missouri  prior  to 
1872  a  nonresident  alien  could  not  acquire  title  to  real  es- 
tate by  descent  or  purchase,  but  he  could  take  personal 
property  as  distributee;^*  but  now  aliens  are  capable  of 
acquiring-,  by  purchase,  devise  or  descent,  real  estate,  and 
of  holding,  devising  or  alienating  it  the  same  as  citizens 
and  residents.'-^  And  in  case  of  title  by  descent  it  is  no  bar 
that  any  ancestor  through  whom  title  is  derived,  is  or  has 
been  an  alien. -"^ 

And  any  female  born  in  the  United  States,  owning  real 
estate  in  Missouri,  who  marries  an  alien  and  resides  in  a 
foreign  country,  may  convey  her  real  estate,  or  devise  it 
by  last  will,  by  conforming  to  the  laws  of  Missouri  as  to 
deeds  or  wills. -^ 

An  Indian  who  is  a  resident  of  the  state,  has  testamen- 
tary capacity,  and  may  transfer  real  estate  by  devise. 

§  9.  Deaf  and  Dumb. — Formerly  one  who  was  deaf  and 
dumb  from  his  nativity,  could  not  make  a  will;  but  now  if 
it  sufficiently  appears  that  he  knows  what  a  testament 
means,  and  has  a  desire  to  make  one  he  may  by  signs  and 
tokens  declare  his  testament. 

One  who  is  not  deaf  and  dumb  by  nature,  but  being  once 
able  to  hear  and  speak,  by  accident  loses  his  hearing  and 
the  use  of  his  tongue,  may  with  his  own  hand  write  his 
will.  If  he  cannot  write,  he  is  in  the  condition  of  those 
who  are  deaf  and  dumb  by  nature,  and  may  make  his  will 
by  signs  and  tokens. 

Those  who  can  speak  and  cannot  hear,  and  those  who 
are  speechless  only,  may,  whether  the  defect  came  by  na- 
ture or  otherwise,  make  their  testaments  by  writing  them 
or  by  signs.  So  a  blind  person  may  make  a  will.  But  in 
all  these  cases  the  testator  must  be  able  to  communicate 
with  others,  and  the  will,  to  be  valid,  must  be  executed  in 
accordance  with  the  requirements  of  the  statute.  It  may 
be  reduced  to  writing  by  another  and  the  name  of  the  tes- 


24  Ilnrney  v.  Donohoe,  97  .Mo.  141,  10  S.  W.  191;  Wacker  v.  Wuck- 
er,  26  Mo.  426. 

2  5  Rev.  St.  3909,  §  748;  Utassy  v.  Giedinirhagen,  132  Mo.  53,  33 
S.  W.  444. 

26  Rev.  St.  1909,  §  339;  Sullivan  v.  Burnett,  105  U.  S.  334,  26 
L.  Ed.  1124. 

2T  Rev.  St.  1909,  §  749;  Burke  v.  Adams,  SO  Mo.  504,  50  Am.  Rep. 
510. 


8  CAPACITY    TO    MAKE    A   WILL  §    10 

tator  signed  thereto  by  his  direction  in  his  presence  or  he 
may  sign  it  by  affixing  his  mark  to  his  name. 

§  10.  Mental  Incapacity.— The  law  requires,  in  all  cases, 
that  the  testator  should  be  a  person  of  "sound  mind." 
Indeed,  no  contract  or  act  made  or  performed  by  a  person 
of  "unsound  mind"  has  any  binding  force  or  efficacy  in  law, 
equity,  or  morals ;  and  it  makes  no  difference  what  caused 
the  mental  deficiency,  nor  of  how  brief  or  long  standing 
it  may  have  been,  the  effect  upon  the  act  is  the  same.  It 
is  the  condition  of  the  mind,  and  not  of  the  body,  that  must 
be  looked  to,  for  the  latter  may  be  in  a  state  of  extreme 
weakness  and  dependency,  and  yet  the  mind  possess  suf- 
ficient vigor  and  understanding  to  direct  the  disposition  of 
property.  Memory,  or  capacity  to  think  and  comprehend 
the  work  in  hand,  is  the  essential  ingredient  in  a  will.  It 
may  be  very  imperfect,  greatly  impaired  by  age  or  disease, 
so  that  the  testator  may  not  be  competent  to  contract  or 
transact  business.  The  testator  may  notf  be  able  at  all  times 
to  recollect  the  names  of  persons  with  whom  he  has  been  in- 
timately acquainted,  may  at  times  ask  idle  and  foolish  ques- 
tions, and  yet  his  understanding  be  sufficiently  sound  to  en- 
able him  to  know  and  understand  the  business  in  which  he  is 
engaged  at  the  time  he  executes  his  will,  for  he  may  have 
often  thought  of  the  subject  and  arranged  the  matter  in 
his  mind  before  it  was  committed  to  writing.  He  should 
be  able  to  understand  the  elements  of  which  the  will  is  com- 
posed; should  recollect  the  property  he  means  to  dispose 
of,  the  persons  who  are  objects  of  his  bounty,  and  the  man- 
ner in  which  it  is  to  be  distributed  between  them,-^  *  al- 
as Harvey  V.  Heirs  of  Sullens,  56  Mo.  372;  s.  c,  46  Mo.  147,  2 
Am.  Rep.  491;  Benoist  v,  Murrin,  58  Mo.  307;  Young  v.  Riden- 
baugh,  67  Mo.  574;  Thomas  v.  Stump,  62  Mo.  275;  Maddox  v.  Mad- 
dox,  114  Mo.  35,  21  S.  W.  499.  35  Am.  St.  Rep.  7.34 ;  Norton  v.  Pax- 
ton,  110  Mo.  456,  19  S.  W.  807 ;  Thompson  v.  Ish,  99  Mo.  160,  12  S. 
W.  510,  17  Am.  St.  Rep.  5.52;  Appleby  v.  Brock,  76  Mo.  314;  Sehr 
V.  Lindemann,  1.53  Mo.  276,  54  S.  W.  537;  Cash  v.  Lust,  142  Mo. 
630,  44  S.  W.  724,  64  Am.  St.  Rep.  576 ;  Fulbright  v.  Perry  County, 
14.5  Mo.  4.32,  46  S,  W.  955 ;    Aylward  v.  Briggs,  145  Mo.  604,  47  S. 

*  The  following  definition  of  testamentary  capacity  is  given  in  the 
case  of  Crum  v.  Crum,  231  Mo.,  loc.  cit.  638,  132  S.  W.  1073:  "A  gen- 
eral definition  satisfying  the  judicial  mind  in  this  jurisdiction  nuist 
be  deduced  from  many  cases,  and  we  think  may  be  held  to  be  that, 
if  a  person  has  not  mind  and  memory  enough  to  understand  the  or- 
dinary affairs  of  life,  the  value,  nature  and  extent  of  his  property, 


g  10  CAPACITY    TO    MAKE    A    WILL 


9 


though  he  need  not  be  able  to  make  contracts  or  to  manage 
his  estate.-''  He  should  have  mind  and  memory  enough 
to  understand  the  ordinary  affairs  of  life,  the  extent  and 
nature  of  his  property,  the  number  and  names  of  the  per- 
sons to  whom  he  desires  to  give  it,  and  sufficient  intelli- 
gence to  understand  the  act  he  is  performing. 

But  if  a  man  has  no  memory,  if  this  faculty  is  wholly 
extinguished  or  so  badly  impaired  that  he  does  not  know 
or  understand  what  he  is  about,  cannot  comprehend  the 
material  provisions  of  the  will,  not  in  its  legal  effect,  but 
in  its  simple  forms,  he  must  be  regarded  as  a  person  of 
unsound  mind  and  incompetent  to  make  a  will.""  The  ca- 
pacity of  the  testator  must  be  determined  by  the  condition 
of  his  mind  at  the  very  time  the  will  is  made,  but  evidence  as 

W.  510;  Couch  v.  Gentry,  113  Mo.  248,  20  S.  W.  890;  Berberet  v. 
Berberet.  131  Mo.  301).  33  S.  W.  61,  52  Am.  St.  Rep.  634;  Defoe  v. 
Defoe,  144  Mo.  458,  46  S.  W.  433;  Hughes  v.  Kader.  183  Mo.  C30. 
82  S.  W.  32 ;  Sayre  v.  Trustees  of  Priuceton  University,  192  Mo.  95, 
90  S.  W.  787 ;  Gibony  v.  Foster,  230  Mo.  106,  130  S.  W.  314 ;  Crossan 
V.  Crossan.  169  Mo.  631,  70  S.  W.  136;  Roberts  v.  Bartlett,  190  Mo. 
680,  89  S.  W.  858 ;  Holton  v.  Cochran,  208  Mo.  314,  106  S.  W.  10:55 ; 
Weston  v.  Hanson,  212  Mo.  248,  111  S.  W.  44;  King  v.  Gilson,  206 
Mo.  264.  104  S.  W.  52. 

2t>  Brinknian  v.  Rueggesick.  71  Mo.  553;  McFadin  v.  Catron,  138 
Mo.  197,  38  S.  W.  932;  Riley  v.  Sherwood.  144  Mo.  354,  J5  S.  W. 
1077 ;  Riggin  v.  Board  of  Trustees  of  Westminster  College,  160  Mo. 
570,  61  S.  W.  803 ;  Schierbaum  v.  Schemme,  157  Mo.  1,  57  S.  W.  526, 
80  Am.  St.  Rep.  604. 

3  0  McKissock  v.  Groom.  148  Mo.  459,  50  S.  W.  115;  Riggin  v. 
Board  of  Trustees  of  Westminster  College,  160  JIo.  570.  61  S.  W. 
803;  Turner  v.  Anderson.  2.36  Mo.  523,  139  S.  AV.  180;  Wilson  v. 
Jackson,  167  Mo.  135,  66  S.  W.  972. 

the  number  and  names  of  the  persons  who  are  the  natural  objects 
of  his  bounty,  iheir  desserts  irith  reference  to  their  conduct  and  treat- 
ment of  him,  their  capacily  and  necessity,  and  has  not  active  meiuory 
enough  to  retain  all  these  facts  in  his  mind  long  enough  to  have  his 
will  prepared,  he  has  no  power  to  dispose  of  his  property  by  will ; 
a  mind  so  afflicted  with  weakness  and  limitations  is  not  a  testamenta- 
ry one."  The  following  cases  are  cited  by  the  court:  Riggin  v. 
Board  of  Trustees  of  Westminster  College,  160  Mo.  570.  61  S.  W. 
803;  Holton  v.  Cochran,  208  Mo.  314.  106  S.  W.  1035;  Goodfellow 
V.  Shannon.  197  Mo.  271,  94  S.  W.  979;  Meier  v.  Buchter,  197  Mo. 
68,  94  S.  W.  883,  6  D.  R.  A.  (N.  S.)  202.  7  Ann.  Cas.  887;  Knapp 
V.  St.  Louis  Trust  Co..  199  Mo.  665.  98  S.  W.  70;  Harvey  v.  Sullens' 
Heirs,  56  Mo.  372 ;  Turner  v.  Anderson.  236  Mo.  523,  139  S.  W.  180, 
cites  Crum  v.  Crum,  231  Mo.,  loc.  cit.  638.  132  S.  W.  1070,  and  gives 
the  same  definition  of  testamentary  capacity. 


10  CAPACITY   TO   MAKE    A   WILL  §  11 

to  the  condition  of  his  mind  shortly  before  and  soon  after 
its  execution  may  be  admitted  as  bearing  on  the  question. ^^ 

§  11.  Idiocy. — A  fool  or  madman  from  his  infancy,  who 
never  has  lucid  intervals,  cannot  make  a  will.  The  ques- 
tion of  idiocy  is  clearly  a  question  of  fact  to  be  determined 
by  the  circumstances  of  each  particular  case.  It  is  a  condi- 
tion of  the  mind  readily  discovered  by  observation,  but  not 
easily  described.  Lord  Erskine  said  that :  "In  the  idiot 
we  see  the  human  frame  without  the  human  capacity." 

If  an  idiot  should  make  his  will  so  well  and  so  wisely  in 
appearance  that  it  would  seem  rather  to  be  the  act  of  a 
rational  man,  than  of  one  void  of  discretion,  it  would  be 
void  in  law.^-  * 

§  12.  A  Lunatic,  that  is,  one  who  has  had  understand- 
ing, but  by  disease,  grief  or  accident,  has  lost  the  use  of  his 
reason,  so  that  he  is  insane  at  times  only,  cannot  make  a 
will  during  the  time  of  his  insanity. 

A  will  made  at  such  time  would  be  void,  although  he 
should  afterwards  recover  his  former  understanding.  A 
lunatic  may  have  a  clear,  calm  intermission  of  the  disease, 
called  a  lucid  interval,  and  during  the  quietness  and  free- 
dom of  mind  which  occurs  in  such  interval,  it  is  well  set- 
tled that  he  may  make  his  will.  But  the  interval  must  not 
be  a  mere  diminution  or  remission  of  the  disease,  but  must 
be  a  sort  of  temporary  cure;  an  intermission  so  clearly 
marked  as  in  every  respect  to  resemble  the  restoration  of 
health  to  the  mind.  The  interval  of  tranquility  should  be 
of  sufficient  length  of  time  to  give  perfect  assurance  of  the 
return  of  reason. 

We  may  remark  here  that  all  persons  are,  in  general, 
presumed  to  be  of  sound  mind  until  the  contrary  appears, 

31  Von  De  Veld  v.  Judy,  143  Mo.  348,  44  S.  W.  1117;  Hamburger 
V.  Rinkel,  164  Mo.  398,  64  S.  W.  104;  Wood  v.  Carpenter,  166  Mo. 
465,  66  S.  W.  172. 

3  2  Campbell  v.  Carlisle,  162  Mo.  634,  63  S.  W.  701;  Southworth 
V.  Southworth,  173  Mo.  59,  73  S.  W.  129. 

*A  prima  facie  case  is  established,  in  a  will  contest,  when  the 
proponents  prove  the  execution  of  the  will,  that  the  testator  was 
of  the  requisite  age  and  of  sound  mind.  It  then  devolves  on  the  con- 
testants to  establish  incompetency  or  undue  influence.  Carl  v.  Ga- 
bel,  120  Mo.  283,  25  S.  W.  214 ;  Sehr  v.  Lindemann,  153  Mo.  276,  54 
S.  W.  537 ;  Riggin  v.  Board  of  Trustees  of  Westminster  College,  160 
Mo.  570,  61  S.  W.  803. 


§  13  CAPACITY   TO    MAKE    A    WILL  11 

and  the  burden  of  proof  lies  on  the  party  wlio  allej::;'es  in- 
sanity. But  where  habitual  insanity  is  once  established, 
the  party  who  would  take  advantage  of  an  interval  of  rea- 
son must  prove  it,  and  the  establishment  of  a  lucid  in- 
terval repels  for  the  time  being  the  presumption  of  inca- 
pacity resulting-  from  the  proof  of  insanity. 

If  a  lunatic  make  a  will  and  it  is  not  known  whether  he 
was  at  the  time  of  the  act  sane  on  insane,  he  will  be  inferred 
rational  or  not,  from  the  nature  and  character  of  the  terms 
of  the  will.  If  he  disposes  of  his  estate  judiciously  and  in 
accordance  with  the  natural  instincts  of  human  nature,  and 
there  be  no  evidences  of  folly  or  injustice  disclosed  by  it,  his 
will  should  be  permitted  to  stand,  otherwise  not. 

The  following  quotation  from  Dr.  Francis  Willis  ably 
points  out  the  difference  between  an  unsound  mind  and 
a  weak  mind : 

"A  sound  mind  is  one  wholly  free  from  delusion.  Weak 
minds  again  only  differ  from  strong  ones  in  the  extent  and 
power  of  their  faculties ;  but  unless  they  betray  symptoms 
of  delusion,  their  soundness  cannot  be  questioned.  An 
unsound  mind,  on  the  contrary,  is  marked  by  delusion,  by 
an  apparent  insensibility  to,  or  perversion  of,  those  feelings 
which  are  peculiarly  characteristic  of  our  nature.  Some 
lunatics,  for  instance,  are  callous  to  a  just  sense  of  aft'ec- 
tion,  decency,  or  honor;  they  hate  those  without  a  cause, 
w^ho  were  formerly  most  dear  to  them ;  others  take  delight 
in  cruelty ;  many  are  more  or  less  offended  at  not  receiv- 
ing that  attention  to  which  their  delusions  persuade  them 
they  are  entitled.  Retention  of  memory,  display  of  talents, 
enjoyment  in  amusing  games,  and  an  appearance  of  ration- 
ality, on  various  subjects,  are  not  inconsistent  with  un- 
soundness of  mind; — hence,  sometimes,  arises  the  difficulty 
of  distinguishing  between  sanity  and  insanity." 

It  may  not  be  improper  to  remark  here  that  a  lunatic 
restored  to  his  reason  may  make  a  will,  though  the  guard- 
ianship under  which  he  has  been  placed,  as  non  compos 
remains  unrevoked.  But  he  could  not,  while  under  guard- 
ianship, make  a  contract,  but  if  not  in  ward  and  the  other 
party  did  not  know  he  was  insane,  and  no  advantage  was 
taken  of  him,  the  contract  will  not  be  set  aside  unless  the 
parties  can  be  placed  in  statu  quo. 

§  13.  Senile  Dementia, — Besides  natural  idiots  and 
lunatics  alreadv  mentioned,  there  are  others  who  were  of 


12  CAPACITY   TO    MAKE    A    WILL  §  14: 

sound  memory,  but  who  have  become  non  compotes,  by  the 
visitation  of  God,  or  by  their  own  act.  Those  falling  un- 
der this  head,  and  whose  cases  most  frequently  induce  in- 
vestigation, are  such  as  have  become  disqualified  by  sick- 
ness or  the  infirmities  of  old  age,  or  who  have  destroyed 
their  reason  by  drunkenness.  But  old  age  alone  does  not 
disqualify;  there  is  no  period  beyond  which  a  man  shall 
be  conclusively  adjudged  to  be  incompetent  to  make  a  will. 
"The  law"  says  Chancellor  Kent,  "looks  only  to  the  ca- 
pacity of  the  mind ;  and  neither  age,  nor  sickness,  nor  ex- 
treme distress  or  debility  of  body,  will  affect  the  capacity 
to  make  a  will,  if  sufficient  intelligence  remains."  It  is 
one  of  the  painful  consequences  of  extreme  old  age,  that 
it  ceases  to  excite  interest,  and  it  is  apt  to  be  left  solitary 
and  neglected.  The  control  which  the  law  gives  to  a  man 
over  the  disposal  of  his  property,  is  one  of  the  most  efficient 
means  which  he  has  in  protracted  life  to  command  the  at- 
tentions due  to  his  infirmities.  The  will  of  such  an  aged 
man  ought  to  be  regarded  with  great  tenderness,  when  it 
appears  not  to  have  been  procured  by  fraudulent  acts, 
but  contains  those  very  dispositions  which  the  circum- 
stances of  his  situation,  and  the  course  of  natural  affection 
dictated. ^^ 

§  14.  Drunkenness. — The  remaining  class  under  this 
head,  is  that  of  the  drunkard.  Drunkenness  is  a  species  of 
insanity,  and  where  it  exists  to  the  extent  of  depriving  the 
testator  of  the  use  of  his  reason  and  understanding,  he  is 
incompetent  to  make  a  will. 

Long  continued  habits  of  intemperance  may  gradually 
impair  the  mind,  so  as  to  produce  insanity  of  another  kind, 
called  mania-a-potu,  or  delirium  tremens.  This  sort  of  in- 
sanity is  usually  temporary  in  its  duration,  and  is  followed 
not  merely  by  a  lucid  interval,  but  by  perfect  restoration 
to  reason.  Yet  drunkenness,  long  continued,  or  much  in- 
dulged in,  may,  and  indeed,  often  does,  produce  on  some 
minds  or  some  temperaments,  total  idiocy,  permanent  de- 
rangement, fixed  insanity. 

Usually,  the   existence  of   insanity   once   established   re- 

3  3  Rule  V.  Maupin,  84  Mo.  587;  Selir  v.  Liudemann,  153  Mo.  276, 
54  S.  W.  537 ;  Harvey  v.  Sullens.  46  Mo.  147,  2  Am.  Rep.  491 ;  Cath- 
olic University  of  America  v.  0"Brieu,  181  Mo.  68,  79  S.  W.  901; 
Hill  V.  Boyd,  199  Mo.  438,  97  S.  W.  918 ;  Kischman  v.  Scott,  166  Mo. 
214,  65  S.  W.  1031. 


§  16  CAPACITY   TO    MAKE    A    WILL  13 

c|uires  proof  from  the  other  party  to  show  a  restoration  or 
recovery,  and  in  the  absence  of  such  proof  it  is  presumed 
to  continue.  But  if  the  insanity  is  shown  to  be  the  result 
of  drunkenness,  or  directly  connected  with  some  violent 
disease,  the  presumption  of  continued  insanity  docs  not 
arise,  and  the  party  allei^in.e;-  it  must  show  its  existence  up 
to  the  time  which  bears  directly  upon  the  subject  in  con- 
troversy. 

§  15.  Duress. — A  contract  entered  into  by  a  person,  by 
duress  of  imprisonment,  or  duress  per  minas,  is  void,  or, 
more  properly  speaking,  voidable.  A  will  executed  under 
duress  is  also  void.  It  is  a  universal  rule  applicable  to  all 
species  of  contracts,  and  to  wills  which  are  mere  gratuities, 
that  they  must  have  the  full  and  free  consent  of  the  par- 
ties making  them ;  at  least  they  must  not  be  procured  by 
fraud,  force  or  violence,  nor  by  imprisonment,  or  illegal 
restraint,  either  actual  or  constructive.  To  constitute  du- 
ress it  is  not  essential  that  the  party  be  threatened  with 
the  loss  of  life  or  limb,  or  with  mayhem ;  but  it  is  enough 
if  he  acts  from  fears  excited  by  threats  of  illegal  imprison- 
ment.^* If  it  can  be  demonstrated  that  actual  fear  was  used 
to  compel  the  testator  to  make  the  will,  there  can  be  no 
doubt  that,  although  all  formalities  in  its  execution  have 
been  complied  with,  and  the  party  perfectly  in  his  senses, 
the  will  cannot  stand." ^  It  is  not  every  fear  or  vain  fear, 
that  will  annul  a  will.  It  must  be  a  just  fear,  that  is,  such 
as  that  without  it,  the  testator  would  not  have  made  his 
will  at  all,  or  at  least  not  in  that  manner.  No  general  rule 
can  be  laid  down  by  which  to  determine  every  case ;  each 
particular  case  must  be  left  to  the  discretion  of  the  court, 
who  ought  to  consider  the  situation  of  the  parties,  the  na- 
ture of  the  injury  threatened,  the  apparent  power  of  the 
party  making  the  threats  to  put  them  into  effect  and  the 
condition  of  the  person  threatened. 

§  16.  Fraud, — Fraud  is  no  less  detestable  in  law  than 
open  force.  Therefore,  when  the  testator  is  circumvented 
by  fraud,  the  will  is  void  as  much  as  if  it  was  the  result  of 
fear.    No  comprehensive  and  satisfactory  definition  of  fraud 

84  Archambault  v.  Blanchard,  198  Mo.  384,  95  S.  W.  S.'U ;  Schier- 
baum  V.  Schemme,  157  Mo.  7,  57  S.  W.  526,  SO  Am.  St.  Rep.  604. 

3  6  Meredith  v.  Meredith,  79  Mo.  App.  636;  Hensinger  v.  Dyer,  147 
Mo.  219,  48  S.  W.  912 ;  Springlleld  Engine  &  Thresher  Co.  v.  Dono- 
van, 147  Mo.  622,  49  S.  W.  500. 


14  CAPACITY   TO    MAKE    A    WILL  §  17 

has  ever  been  formulated.  It  takes  all  of  the  many  varying 
forms  and  combinations  that  occur  to  the  minds  of  shrewd 
and  scheming  men  who  attempt  to  gain  as  a  result  of  their 
deceit,  misrepresentation  and  false  statements.  Fraud  in 
procuring  a  will  may  consist  in  the  assumption  of  a  false 
character  by  one  for  the  purpose  of  inducing  a  bequest  in 
his  favor  by  another.  It  may  consist  in  false  statements 
made  with  reference  to  one  who  would  otherwise  be  the 
object  of  the  testator's  bounty.  Any  person  has  a  right  by 
fair  argument  and  persuasion,  or  by  virtuous  influence  to 
induce  another  to  make  a  will  in  his  favor. ^"  A  will  cannot 
be  set  aside  for  fraud  by  means  of  a  suit  in  equity  as  this 
jurisdiction  is  lodged  exclusively  by  statute  in  the  probate 
courts  and  should  be  made  at  the  probate  of  the  will. 

§  17.  Undue  Influence. — Undue  influence  as  an  affirma- 
tive defense  is  far  more  important  in  the  law  of  wills  than 
fraud,  although  in  many  of  their  phases  the  two  are  largely 
co-ordinate  and  exist  together.  Where  dominion  is  ac- 
quired by  one  person  over  the  mind  of  another,  which  is 
sufficiently  sane  for  general  purposes,  to  the  extent  of  pre- 
venting the  free  exercise  of  his  discretion  in  disposing  of 
his  property  by  will,  it  would  be  regarded  as  a  case  of 
undue  influence  and  inconsistent  with  the  idea  of  a  dis- 
posing mind.  But  the  influence  to  vitiate  an  act  must 
amount  to  force  or  coercion,  destroying  free  agency.  It 
must  not  be  the  influence  of  affection  and  attachment.  It 
must  not  be  the  mere  desire  of  gratifying  the  wishes  of  an- 
other, for  that  would  be  strong  ground  in  support  of  the 
will.  It  must  be  shown  that  the  act  was  obtained  by  coer- 
cion or  importunity,  which  could  not  under  the  circum- 
stances be  resisted  and  produced  compliance  for  the  sake 
of  peace. •'''^ 

If  a  wife  by  her  virtues  has  gained  such  ascendency  over 
her  husband,  that  her  pleasure  is  the  law  of  his  conduct, 
such  influence  is  no  reason  for  impeaching  a  will  made  in 
her  favor,  even  to  the  exclusion  of  the  residue  of  his  family. 


36  Blanchard  v.  Nestle,  3  Denio  (N.  Y.)  4.3;  Miller  v.  Miller,  3  Serg. 
&  K.  (Pa.)  207,  270,  8  Am.  Dec.  6.51 ;  Gordon  v.  Burris,  153  Mo.  223. 
54  S.  W.  546;  Gay  v.  Gillilan,  92  Mo.  250,  5  S.  W.  7,  1  Am.  St. 
Rep.  712. 

37  Lyne  V.  Marcus,  1  Mo.  410,  13  Am.  Dec.  .509;  Garland  v.  Smith, 
127  Mo.  .583,  28  S.  W.  19G,  29  S.  W.  S3G ;  Hans  v.  Holler,  165  Mo. 
47,  65  S.  W.  308. 


§  18  CAPACITY   TO    MAKE    A   WILL  15 

Nor  would  it  be  safe  to  set  aside  a  will  on  the  c^round  of 
influence,  importunity  or  undue  advantage  taken  by  his 
wife  over  his  mind  and  conduct  in  the  general  concerns 
of  life,  unless  there  should  be  proof  that  such  influence  was 
specially  exerted  to  procure  a  will  peculiarly  acceptable  to 
her  and  prejudicial  to  others. ■'''  "The  undue  influence  that 
will  break  a  will  must  be  present,  in  active  exercise,  and 
rise  to  the  mark  of  such  over-persuasion,  coercion,  force, 
fraud,  or  deception,  as  breaks  the  will  power  of  testator 
and  puts  in  its  stead  the  will  of  another."  ^^  In  other  words 
the  testator  becomes  a  mere  instrument  in  the  hands  of 
the  one  exercising  the  undue  influence.*"  "It  is  also  the 
law  in  Missouri  that  any  degree  of  influence  over  another 
acquired  by  kindness  and  affectionate  attention,  can  never 
constitute  undue  influence  within  the  meaning  of  the 
law,"  *^  It  must  be  what  the  term  itself  implies  "undue" 
influence. 

The  mere  fact  that  a  legatee  had  an  influence  over  the 
mind  of  the  testator,  growing  out  of  confidential  relations,  is 
no  objection  to  the  validity  of  a  bequest,  unless  the  in- 
fluence was  used  to  procure  it. 

Where  a  confidential  relation  is  shown  between  the  tes- 
tator and  the  recipient  of  his  bounty,  an  exerted  influence 
will  be  presumed  and  the  burden  is  on  the  beneficiary  to 
repel  the  presumption,  but  where  mental  capacity  and  free 
agency  appear  the  testator  may  make  an  unjust  or  inju- 
dicious will.'*'- 

§  18.  On  Account  of  Conviction  for  Crime. — Persons  in- 
capable at  common  law  of  making  wills  and  testaments  on 

3  8  Gardner  v.  Gardner,  22  Wend.  (N.  Y.)  526.  34  Am.  Dec.  040; 
Dingman  v.  Romine,  141  Mo.  466,  42  S.  W.  1087;  Sunderland  v. 
Hood,  84  Mo.  293;  Tibbe  v.  Kanip,  154  Mo.  545,  54  S.  W.  879,  55 
S.  W.  440. 

3  9Kiscliman  v.  Scott,  166  Mo.  214,  65  S.  W.  1031;  Aylward  v. 
Brigfc's,  145  Mo.  604,  47  S.  W.  510. 

40  Weber  v.  Strobel.  236  Mo.  649,  139  S.  W.  ISS ;  INIartin  v.  Bow- 
dern,  158  Mo.  379.  59  S.  \\.  227 ;  Crowsou  v.  Crowson,  172  Mo.  691, 
72  S.  W.  1065 ;  Riley  v.  Sherwood.  144  Mo.  354,  45  S.  W.  1077 ;  Nor- 
ton V.  Paxton,  110  Mo.  456,  10  S.  W.  807. 

^3  Weber  v.  Strobel.  2.36  Mo.  649,  139  S.  W.  188;  Campbell  v.  Car- 
lisle, 162  Mo.  634.  63  S.  W.  701 ;  Scibort  v.  Hatcher,  205  Mo.  83,  102 
S.  W.  962 ;  Dausman  v.  Rankin,  189  Mo.  677,  88  S.  W.  696,  107  Am. 
St.  Rep.  .391 ;    Sehr  v.  I.indeinann,  1.53  Mo.  276,  54  S.  W.  537. 

42Maddox  v.  Maddox.  114  :SIo.  35.  21  S.  W.  499.  .35  Am.  St.  Rep- 
734:    McFadin  v.  Catron,  138  Mo.  197,  .39  S.  W.  771. 


16  CAPACITY  TO   MAKE   A   WILL  §  18 

account  of  their  criminal  conduct,  from  the  time  of  their 
conviction,  were  all  traitors  and  felons ;  for  then  their 
goods  and  chattels  were  no  longer  at  their  own  disposal,  but 
were  forfeited  to  the  king.*^  But  if  a  convict  obtained  the 
king's  pardon,  he  was  thereby  restored  to  his  former  es- 
tate, and  could  bequeath  it  the  same  as  if  he  had  not  been 
convicted.  This  incapacity  also  extended  to  a  felo  de  se, 
and  to  outlaws,  so  long  as  the  outlawry  subsisted.**  For- 
feiture of  estate  and  corruption  of  blood  for  any  offense 
under  the  constitution  and  laws  of  the  United  States  are 
abolished.  Yet,  as  forfeiture  of  property  in  case  of  treason 
was  a  part  of  the  common  law,  it  must  exist  now  in  those 
states  where  it  has  not  been  abolished  by  their  constitu- 
tions or  statutes.  Several  of  the  state  constitutions  have 
provided  that  no  attainder  of  treason  or  felony  shall  work 
corruption  of  blood  or  forfeiture  of  estate,  except  during 
the  life  of  the  offender,  and  others  have  abolished  this  pen- 
alty absolutely ;  and  still  others  confine  it  to  the  case  of 
conviction  for  treason,  or  treason  and  murder. 

By  the  constitution,  there  can  be  no  forfeiture  of  estate 
for  any  crime;  the  estates  of  persons  who  destroy  their 
own  lives  descend  and  vest,  as  in  cases  of  natural  death. *^ 

And  the  statute  provides  that  no  conviction  of  any  person 
for  any  offense  whatever  shall  work  corruption  of  blood 
or  forfeiture  of  any  estate  or  any  right  or  interest  therein ; 
and  all  forfeitures  in  cases  of  suicide,  or  death  by  casualty, 
or  where  any  person  shall  flee  from  justice,  are  abolished.** 
Thus  it  will  be  seen  that  there  is  no  disability  in  this  state 
arising  from  forfeiture  for  crime,  and  the  common  law  upon 
the  subject  is  entirely  abolished. 

§  19.  Same. — But  there  is  a  class  of  cases  where  inca- 
pacity arises  from  conviction  for  crime.  Thus,  a  sentence 
of  imprisonment  in  the  penitentiary  for  a  term  less  than 
for  life,  suspends  all  civil  rights  of  the  person  so  sentenced 
during  the  term  thereof,  and  forfeits  all  public  offices  and 
trusts,  authority  and  power;  and  persons  sentenced  to  such 
imprisonment  for  life,  are  thereafter,  to  be  deemed  civilly 
dead.*^  This  applies  to  a  conviction  in  a  state  court,  and 
not  in  a  Federal  court.** 

43  2  Blacks.  Com.  499.  •»*  Td. 

4&  Const.  Mo.  art.  2,  §  13. 

46  P.ev.  St.  1909,  §  4917 ;  Williams  v.  Shackleford,  97  Mo.  322,  11 
S.  W.  222. 

4  7  Rev.  St.  1909,  §  2891.  4  8  Presbury  v.  Hull,  34  Mo.  29. 


§   19  CAPACITY    TO    MAKE    A    WILL  17 

Civil  death  is  the  state  of  a  person  who,  though  yet  in 
life,  has  lost  all  his  civil  rights,  and  as  to  them,  is  consid- 
ered as  dead.  The  right  to  make  a  will  is  undoubtedly  one 
of  the  civil  rights  which  is  suspended  by  sentence  of  im- 
prisonment in  the  state's  prison.  A  contract  or  mortgage 
made  by  such  a  convict  is  void. 

If  such  convict  be  at  the  time  of  the  sentence,  an  execu- 
tor, administrator  or  guardian,  the  trust  is  thereby  forfeited, 
and  another  may  be  appointed  in  his  place. 
Kel.Mo.P.G.— 2 


18  FORM    AND   MANNER    OF    MAKING   WILLS  §  20 

CHAPTER  II 
OF  THE  FORM  AND  MANNER  OF  MAKING  WILLS 

§  20.  Essential  ingredients. 

21.  The  will   must  be  in  writing. 

22.  How  to  be  worded. 

23.  Same— Rule  in  Shelley's  Case— What  estate, 

24.  By  whom  written— Presumptively  void  when. 

25.  Must  depend  on  event  of  death. 

26.  How  and  where  to  be  signed. 

27.  Same. 

28.  How  attested. 

29.  Competency  of  attesting  witnesses. 

30.  Attestation — Clause. 

31.  Care  in  drafting  will. 

Form  of  written  will. 

Form  of  codicil. 

Form  of  nuncupative  will. 

§  20.  Essential  Ingredients. — Wills  and  codicils  are  of 
two  kinds;  written  and  unwritten,  or  nuncupative.  By 
the  Statute  of  Wills  of  1535  wills  of  free  hold  lands  must  be 
in  writing,  but  no  solemnities  of  any  kind  were  necessary 
for  their  execution.  But  the  English  Statute  of  Frauds  re- 
quired the  formalities  of  signature  and  attestation  to  de- 
vises of  lands  and  generally  speaking,  a  will  of  personal 
property  was  required  by  it  to  be  reduced  to  writing  in  the 
testator's  lifetime,  but  no  other  formality  was  necessary. 
It,  therefore,  often  happened  that  a  will,  intended  to  be- 
queath both  real  and  personal  estate,  was  inoperative  as 
to  the  former,  but  valid  as  to  the  latter.  In  England,  how- 
ever, by  the  act^  which  took  effect  January  1,  1838,  the 
same  formalities  of  execution  and  attestation  are  necessary, 
whether  the  will  disposes  of  real  or  personal  estate.  The 
regulations  for  the  execution  of  wills  in  the  several  states 
may  dififer  in  some  essential  particulars,  but  they  have 
adopted  substantially  the  formalities  required  by  the  Eng- 
lish law,  making  no  distinction  between  wills  of  real  or 
personal  estate. 

In  Missouri,  three  essential  ingredients  enter  into  the  ex- 
ecution of  a  will,  viz.:  1.  It  must  be  in  writing.  2.  It  must 
be  signed  by  the  testator,  or  by  some  person  by  his  direc- 

1 1  Vict.  c.  26. 


§  22  FORM    AND   MANNER   OF  MAKING   WILLS  19 

lion,  in  his  presence.  3.  It  must  be  attested  by  two  or  more 
competent  witnesses  subscribing  their  names  to  the  will 
in  the  presence  of  the  testator.- 

We  shall  notice  these  formalities  somewhat  in  detail,  in 
the  order  in  which  they  are  named,  and  add  a  few  other  mat- 
ters connected  with  the  subject  under  appropriate  headings. 

§  21.  The  Will  must  be  in  Writing. — A  will  is  usually 
written  on  paper  or  parchment  with  pen  and  ink.  But  it  has 
been  held  that  a  will  written  in  pencil  instead  of  ink  is 
good;  and  it  may  be  written  or  printed  on  any  sort  of  ma- 
terial. So,  if  a  will  be  in  print,  engraving,  or  lithograph, 
it  is  no  doubt  a  sufficient  compliance  with  the  law.''  Al- 
though it  would  be  more  prudent,  certainly,  to  write  it  with 
pen  and  ink  on  good  paper  or  parchment.  No  particular 
form  of  words  is  necessary,  nor  is  it  material  in  what  lan- 
guage it  is  written.  If  it  be  written  in  a  foreign  language, 
probate  may  be  granted  of  a  translation.*  As  the  attesting 
witnesses  need  not  hear  the  will  read,  it  follows  that  they 
need  not  understand  the  language  in  which  it  is  written. 
Nor  is  it  necessary  that  the  testator  should  understand  the 
language  of  the  instrument,  if  it  is  properly  interpreted  to 
him  and  he  fully  comprehends  its  contents. 

The  date  is  not  a  material  part  of  a  will.  It  will  be  valid 
though  it  has  no  date  or  a  wrong  one.  The  actual  time 
when  it  was  executed  may  be  shown  by  parol  evidence.^ 

§  22.  How  Worded. — It  is  not  necessary  that  the  direc- 
tions in  a  will  as  to  how  property  should  be  disposed  of  in 
the  event  of  death,  should  be  in  direct  and  imperative  terms. 
Wishes  and  requests,  such  as  "It  is  my  wish,"  "Most  earn- 
estly wish,"  "Recommend,"  "I  desire,"  "I  bequeath,"  etc., 
are  deemed  sufficient.  In  a  will  of  real  estate,  the  word 
heirs  is  not  necessary  to  pass  an  estate  in  fee,  if  the  inten- 
tion of  the  testator  to  pass  a  fee  is  apparent  from  an  ex- 
amination of  the  whole  instrument.^     The  word  "estate" 

2  Rev.  St.  1009,  §  rjr,7 ;  Cox  v.  Cox,  101  Mo.  IGS.  13  S.  W.  1055 ; 
Watsou  V.  Watsou.  110  Mo.  16S,  19  S.  W.  543;  West  v.  West,  144 
Mo.  119,  46  S.  W.  139;  Cutlett  v.  Catlett,  55  Mo.  330;  Beyer  v. 
Hermann,  173  Mo.  295,  73  S.  W.  1G4. 

3  1  Kedf.  on  Wills,  1G5. 

4  Berberet  v.  Berberet,  131  Mo.  399,  33  S.  W.  61,  52  Am.  St.  Rep. 
634. 

5  West  V.  West.  144  Mo.  119,  46  S.  W.  1.39. 

c  Watson  v.  Watson.  110  :Mo.  164,  19  S.  W.  543;  Rothwell  v.  .Tanii- 
son,  147  Mo.  601,  49   S.  W.  503;    Meiners  v.   Meiners,   179   Mo.   614, 


20  rOKM    AND    MANNER   OF   MAKING    WILLS  §  22 

passes  a  fee.^  The  general  rule  is,  that,  a  devise  of  an  estate 
generally  or  indefinitely,  with  a  power  of  disposition  over 
it,  carries  a  fee.  But  words  of  mere  implication  will  not 
convert  a  life  estate  into  a  fee,  unless  the  manifest  intent 
of  the  testator  requires  it.* 

In  order  to  effectuate  the  meaning  of  a  will  words  may 
be  supplied,  transposed  or  changed.® 

But  it  must  be  apparent  from  the  general  tenor  and  con- 
text of  the  will  that  certain  words  have  been  omitted  or 
words  have  been  improperly  used.^° 

§  23.  Same — Rule  in  Shelley's  Case. — A  devise  of  real 
estate  to  any  person  for  life,  and  after  his  or  her  death,  to 
his  or  her  children  or  heirs,  or  right  heirs  in  fee,  vests  an 
estate  for  life  only  in  the  devisee,  and  the  remainder  in 
fee  simple  passes  to  such  children.^^  This  abrogates  the 
rule  in  Shelly 's  case.  But  in  all  devises  of  land  or  other 
estate  in  which  the  words  "heirs  and  assigns,"  or  "heirs  and 
assigns  forever"  are  omitted,  and  no  expressions  are  con- 
tained in  the  will  showing  the  devise  was  intended  to  con- 
vey an  estate  for  life  only,  and  no  further  devise  be  made 
of  the  devised  premises,  to  take  eft'ect  after  the  death  of  the 
devisee,  it  should  be  understood  to  be  the  intention  of  the 
testator  thereby  to  devise  an  absolute  estate,  in  fee  sim- 

78  S.  W.  795;  Roth  v.  Rauschenbusch,  173  Mo.  5S2,  73  S.  W.  664, 
61  L.  R.  A.  455;  Gannon  v.  Albright,  183  Mo.  238,  81  S.  W.  1162, 
67  L.  R.  A.  97,  105  Am.  St.  Rep.  471. 

7  Shumate  v.  Bailey,  110  Mo.  411,  20  S.  W.  178 ;  Noe  v.  Kern,  93 
Mo.  367.  6  S.  W.  2.39,  3  Am.  St.  Rep.  544. 

8  Gregory  v.  Cowgill,  19  Mo.  415 ;  Cook  v.  Couch,  100  Mo.  29,  13 
S.  W.  80 ;  Hurst  v.  Von  de  Veld,  158  Mo.  239,  58  S.  '.V.  1056.  See 
po.st,  §  100. 

9  Nichols  V.  Boswell,  103  Mo.  151,  15  S.  W.  343 ;  Maguire  v.  Moore, 
108  Mo.  267,  18  S.  W.  897;  Ringquist  v.  Young,  112  :Mo.  25,  20  S. 
W.  159;  Garth  v.  Garth,  139  Mo.  456,  41  S.  W.  238;  Cross  v. 
Hoch,  149  Mo.  325,  50  S.  W.  786;  Briant  v.  Garrison,  150  Mo.  655, 
52  S.  W.  361 ;  Hurst  v.  Von  de  Veld,  158  Mo.  239,  58  S.  W.  1056 ; 
Simmons  v.  Cabanne,  177  Mo.  336,  76  S.  W.  618;  RoBards  v.  Brown, 
167  Mo.  447,  67  S.  W.  245. 

10  Thomson  v.  Thomson,  115  Mo.  56,  21  S.  W.  1085,  1128 ;  Drake 
V.  Crane,  127  Mo.  85,  29  S.  W.  990,  27  I/.  R.  A.  653. 

11  Rev.  St.  1909,  §  578;  Owen  v.  Eaton,  56  Mo.  App.  563;  Corn- 
well  V.  WulfE,  148  Mo.  542,  50  S.  W.  439,  45  L.  R.  A.  53 ;  Greftet  v. 
Willman,  114  Mo.  106,  21  S.  W.  459 ;  Russell  v.  Eubanks,  84  Mo.  82 ; 
Reindors  v.  Koppehnann.  68  Mo.  482,  30  Am.  Rep.  802;  Riggins  v. 
McClellan,  28  Mo.  23. 


§  24  FORM    AND    MANNER   OF   MAKING    WILL8  21 

pie,  to  the  devisee.^-  An  executory  devise  to  the  unborn 
child  of  an  unborn  child  is  void.  Such  a  devise,  to  be  valid, 
must  take  effect,  if  at  all,  within  a  period  comprised  within 
a  life  or  lives  in  being  and  twenty-one  years  thereafter, 
with  the  addition  of  the  period  of  gestation  of  a  child  en 
ventre  sa  mere.^'*  A  limitation  inconsistent  with  an  abso- 
lute gift  is  void,  and  a  fee  passes  to  the  first  taker.^*  The 
rule  is  that  an  estate  in  fee  created  by  a  will  cannot  be  cut 
down  or  limited  by  a  subsequent  clause,  unless  the  testator 
has  clearly  shown  such  to  be  his  intention.^ ^  These  stat- 
utory provisions  must  control  the  quantity  of  the  estate 
which  passes  by  a  devise  in  all  cases  where  they  are  ap- 
plicable, therefore  it  is  unnecessary  to  collect  authorities 
on  this  point. 

§  24.  By  whom  Written — Presumptively  Void. — It  is 
not,  in  general,  material  to  the  validity  of  a  will,  whether 
it  be  written  by  the  testator  himself  or  by  some  other  per- 
son for  him,  so  it  contains  a  fair  and  true  expression  of  his 
desires.  By  the  civil  law,  however,  if  a  person  wrote  a 
will  in  his  own  favor  it  was  void.  But  this  rule  has  not 
prevailed  to  any  considerable  extent  in  England  or  in  this 
country.  In  such  a  case,  the  burden  of  proof  lies  on  the 
party  by  whom  the  will  was  written  to  show  that  it  ex- 
presses the  wishes  of  the  testator.  The  fact  of  writing  the 
will  excites  suspicion,  and  is  a  presumption  against  its  valid- 
ity, whi.-h  must  be  removed,  or  the  court  will  pronounce 
against  it.^*^     But  if  it  should  appear  that  the  testator  gave 


12  Rev.  St.  1909,  §  579;  Cook  v.  Couch,  100  Mo.  29,  13  S.  W.  80; 
Owen  V.  Eaton,  56  Mo.  App.  56.3 ;  Simmons  v.  Cabanne.  177  Mo.  336, 
76  S.  W.  618 ;    Yocum  v.  Siler,  160  Mo.  281,  61  S.  W.  208. 

i3Lockridge  v.  Mace,  109  Mo.  162,  18  S.  W.  1145;  Gates  v.  Sei- 
bert,  157  Mo.  254,  57  S.  W.  1065,  80  Am.  St.  Rep.  625;  Sliepperd 
V.  Fisber.  206  Mo.  208,  103  S.  W.  989 ;  Gray  on  Perpetuities,  §«?  369 
to  382 ;    1  Wusbburn  on  Real  Property  (4th  Ed.)  p.  110,  c.  4,  §  57. 

14  Campbell  v.  Beaumont,  91  N.  Y.  465;  Wead  v.  Gray,  78  Mo.  59; 
Coruwell  v.  Wulff,  148  Mo.  542,  50  S.  W.  439,  45  L.  R.  A.  53 ;  Papin 
V.  Piednoir,  205  Mo.  521,  104  S.  W.  63;  Roth  v.  Rauchenbusch.  173 
Mo.  582,  73  S.  W.  664,  61  L.  R.  A.  455 ;  Underwood  v.  Cave,  176  Mo. 
1,  75  S.  W.  451. 

ic  Chew  V.  Keller,  100  Mo.  362,  13  S.  W.  395;  Small  v.  Field.  102 
Mo.  104,  14  S.  W.  815 ;    Yocum  v.  Siler,  160  Mo.  281,  61  S.  W.  208. 

10  Harvey  v.  Sullens,  46  Mo.  147,  2  Am.  Rep.  491 ;  Garvin's  Adm'r 
V.  Williams,  50  Mo.  206 ;  McFadin  v.  Catron.  138  Mo.  197,  38  S.  W. 
932,  39  S.  W.  771 ;    Dingman  v.  Romine,  141  Mo.  466,  42  S.  W.  1087 ; 


22  FORM    AND   MANNER   OF   MAKING    WILLS  §  25 

instructions  for  drawing  the  will,  or  that  it  was  read  over  to 
or  by, him,  and  he  knew  its  contents,  it  will  be  upheld. ^^  A 
will  by  a  w^ard  to  his  guardian  is  also  presumptively  void,^^ 
and  so  is  one  in  favor  of  a  priest  or  religious  adviser.^**  But 
the  rule  as  to  transactions  between  persons  standing  in 
confidential  relations  does  not  apply  to  gifts,  grants  or  do- 
nations from  parent  to  child  ;^**  but  it  would  apply  to  a 
gift  from  the  child  to  the  parent."^ 

§  25.  Must  Depend  on  Event  of  Death. — We  may  re- 
mark again  that  no  particular  form  of  words  is  necessary 
to  make  a  will  of  either  real  or  personal  estate.  But  what- 
ever may  be  the  form  or  language  of  the  instrument,  it  is 
essentially  requisite  that  it  should  be  made  to  depend  upon 
the  "event  of  death"  to  consummate  it;  for  where  a  paper 
directs  a  benefit  to  be  conferred  inter  vivos,  without  refer- 
ence, expressly  or  impliedly,  to  the  death  of  the  party  con- 
ferring it,  it  cannot  be  established  as  a  testament. "- 

§  26.  How  to  be  Signed. — What  amounts  to  sufficient 
signing  by  the  testator,  has  been  a  question  of  no  little  con- 
troversy. The  statutes  of  some  of  the  states  require  the  sig- 
nature to  be  placed  at  the  end  of  the  instrument,  and  this 
is  the  English  statute,  but  the  statutes  of  many  of  the 
states,  including  Missouri,  do  not  expressly  require  the  sign- 
ing to  be  at  the  end  of  the  instrument.  It  has  been  held  that 
a  will  commencing  with  the  name  of  the  testator,  especially 
if  it  be  written  by  him,  is  properly  signed,  if  it  be  his  in- 
tention to  adopt  the  writing  of  his  name  at  the  beginning 
of  his  will  as  his  final  signature  thereto.     But  in  the  very 

Barkley  v.  Barkley  Cemetery  Ass'n,  153  Mo.  300,  54  S.  W.  4S2 ;  Mil- 
tenberger  v.  Miltenberger,  78  Mo.  27. 

17  Berberet  v.  Berberet,  131  Mo.  399,  33  S.  W.  61,  52  Am.  St.  Rep. 
G34;    Beyer  v.  Hermann,  173  Mo.  295,  73  S.  W.  164. 

18  Garvin's  Aclm'r  v.  Williams,  44  Mo.  465,  100  Am.  Dec.  314; 
Bridwell  v.  Swank.  .84  Mo.  455;  Tibbe  v.  Kamp,  154  Mo.  545,  54 
S.  W.  879,  55  S.  W.  440. 

19  Hegney  v.  Head,  126  Mo.  619,  29  S.  W.  587. 

2  0  Hatcher  v.  Hatcher,  1.39  Mo.  614,  39  S.  W.  479;  Cash  v.  Lust, 
142  Mo.  630,  44  S.  W.  724,  64  Am.  St.  Rep.  576 ;  Aly  ward  v.  Briggs, 
145  Mo.  604,  47  S.  W.  510;  Kischman  v.  Scott,  166  Mo.  214,  65  S. 
W.  1031. 

2iBradshaw  v.  Yates,  67  Mo.  221;    McKinney  v.  Hensley,  74  Mo. 

326. 

2  2  Maze  V.  Baird,  89  Mo.  App.  348;  Robnett  v.  A.s]ilock.  49  Mo. 
171;  Miller  v.  Holt,  68  Mo.  584;  Christ  v.  Kuehue,  172  Mo.  US, 
72  S.  W.  537. 


§  27  FORM    AND    MANNER    OF    MAKING    WILLS 


23 


nature  of  things  the  appropriate  place  for  the  signature  is 
at  the  conclusion  or  foot  of  the  will,  and  the  custom  of 
placing  the  signature  at  that  place  is  now  so  nearly  uni- 
versal that  the  pro])riety  of  recognizing  the  name,  if  placed 
elsewhere,  as  a  final  signature  of  the  party,  may  be  seriously 
questioned.-^  But  the  desire  of  the  courts  to  uphold  such 
instruments  and  prevent  apparent  hardships,  has  led  to  a 
virtual  evasion  of  the  letter,  if  not  of  the  spirit  of  the  law. 
Of  course  where  the  statute  requires  the  will  to  be  signed 
at  the  end,  it  must  be  complied  with;  -*  and  where  a  will 
was  not  signed  at  the  conclusion  or  end,  and  was  not  writ- 
ten by  the  testator,  it  was  held  not  properly  signed,  al- 
though it  was  assented  to  by  him  and  attested  by  wit- 
nesses.-'' 

§  27.  Same. — The  will  may  be  signed  by  the  testator 
writing  his  name,  or  by  making  his  mark  thereto,  and  the 
courts  will  not  stop  to  inquire  wdiether  he  could  or  could 
not  write  his  own  name.-"  Whenever  he  is  physically  un- 
able to  subscribe  the  will  without  assistance,  his  hand  may 
be  guided  by  another,  and  it  is  not  necessary  that  any  ex- 
press request  should  be  made  by  him  for  such  assistance. 
Signing  a  wrong  name  against  the  mark,  or  by  the  initials 
of  the  name,  or  by  an  assumed  or  fictitious  name,  has  been 
held  sufficient.-'  It  is  not  essential  that  the  testator  should 
write  his  own  nanie.  It  may  be  signed  by  any  other  person 
by  Ids  direction  in  his  presence.-^  In  such  case,  something 
more  than  the  mere  assent  of  the  testator  to  the  signing 
should  appear ;  he  should  in  some  manner,  by  act  or  word, 
direct  the  signing,  and  it  must  be  done  in  his  presence. 

Under  the  Missouri  statute  of  1845,  the  person  who 
signed  the  testator's  name  to  his  will  by  his  direction  was 
required  to  subscribe  his  own  name  as  a  witness,  and  state 
that  he  subscribed  the  testator's  name  at  his  request,  or  the 

2  3  Catlett  V.  Ciitlett,  55  Mo.  330;  Walton  v.  Keudrick,  122  Mo. 
504,  27  S.  W.  872,  25  L.  K.  A.  701. 

2  4  Hewitt's  Will,  In  re,  91  N.  Y.  2G1. 

25  Catlett  V.  Catlett,  55  Mo.  330;  Stephens  v.  Stephens,  129  Mo. 
422,  31  S.  W.  702,  50  Am.  St.  Rep.  454. 

2G  St.  Ivouis  Hospital  Ass'n  v.  Williams'  Adm'r,  19  Mo.  609;  Steph- 
ens V.  Stephens,  129  Mo.  422,  31  S.  W.  792,  50  Am.  St.  Rep.  454. 

27  1  Redfield  on  Wills,  204. 

28  Walton  V.  Kendiitk,  122  Mo.  504,  27  S.  W.  872,  25  L.  R.  A. 
701 ;   Lindsey  v.  Stephens,  229  Mb.  GOO,  129  S.  W.  641. 


24  FORM   AND   MANNER   OF   MAKING    WILLS 


28 


will  was  void.2«     But  such  has  not  been  the  law  since  the 
revision  of  1855. 

§  28.     How   Attested.— /f    must   be   attested    by    two    or 
more    competent    zvitncsscs    subscribing    their  names  to   the 
7C'///   /;/   the  presence  of  the  testator.     As  the  attesting  wit- 
nesses are  required  to  attest  both  the  signature  and  the  san- 
ity of  the  testator  at  the  time  of  the  execution  of  the  will 
they  should  act  cautiously  and  with  due  circumspection.-*" 
It  is  not  essential,  however,  to  the  probate  of  the  will  in 
solemn  form  by  proceedings  in  the  circuit  court  that  the 
witnesses    should    testify   that   the   testator   was   of   sound 
mind;   the  fact  may  be  proven  by  other  testimony.^^^     The 
testator  must  sign  the  will  before  or  at  the  time  it  is  at- 
tested,  and  not  afterward.^^     jt  jg  not  necessary  that  it 
should  be  signed  in  the  presence  of  the  witnesses  or  that 
they  should  be  advised  of  its  contents ;    if  it  has  been  pre- 
viously signed  and  he  acknowledges  the  signature  or  instru- 
ment to  be  his  will,  it  is  sufficient,  and  they  may  properly 
subscribe  their  names  as  attesting  wutnesses.^=*     Neither  is 
it  essential  that  the  witnesses  should  all  attest  it  at  the 
same  time,  or  in  the  presence  of  each  other;    one  may  at- 
test it  at  one  time  and  another  at  a  different  time  and,  in  the 
absence  of  each  other,  but  the  attestation  of  each  must  be 
made  in  the  presence  of  the  testator,  i.  e.,  he  must  be  able, 
if  so  disposed,  to  see  both  the  witness  and  the  will  at  the 
time  of  the  signing  by  the  witness.^*     This  is  to  prevent  a 
surreptitious   will  from   being   substituted  or   imposed   on 
the  testator  for  the  one  he  intended  to  make.     In  a  legal 
sense  the  words  "signed"  and  "subscribed"  are  synonymous, 
as  used  in  connection  with  the  execution  of  a  will,  therefore 
a  subscribing  witness  to  a  will  may  sign  by  making  his 

2  9  Rev.  St.  1845,  p.  1079,  c.  185,  §  5;  McGee  v.  Porter,  14  Mo.  611, 
5.5  Am.  Dec.  129 ;    Northcutt  v.  Northcutt,  20  Mo.  266. 

3owithinton  v.  Witliinton,  7  Mo.  589;  Walton  v.  Keudrick,  122 
Mo.  504,  27  S.  W.  872,  25  L.  R.  A.  701. 

31  Mays  V.  Mays,  114  Mo.  536,  21  S.  W.  921;  Morton  v.  Heidorn, 
135  Mo.*  60S,  37  S.  W.  504. 

32  1  Redfield  on  Wills,  227. 

33  1  Jarm.  Wills,  72;  4  Kent,  Com.  516;  2  Greenleaf  on  Evidence, 
676;  Cravens  v.  Faulconer,  28  Mo.  19;  Grimm  v.  Tittman,  113  Mo. 
56,  20  S.  W.  664. 

34  Hughes  v.  Rader,  183  Mo.  702,  82  S.  W.  32 ;  Hach  v.  Rollins, 
158  Mo.  190,  59  S.  W.  232 ;  Avaro  v.  Avaro,  235  Mo.  424,  138  S.  W. 
500. 


§  29  FORM   AND   MANNER   OF   MAKING    WILLS  25 

mark,  or  if  he  cannot  write  his  hand  may  be  guided  by  an- 
other. 

§  29.  Competency  of  Attesting  Witnesses. — At  common 
law  an  interested  party  was  not  competent  as  a  witness. 
Therefore  attesting  witnesses  to  wills  who  were  interested 
either  as  devisees,  legatees,  executors  or  simply  as  creditor 
for  whom  some  special  provision  was  made,  were  incompe- 
tent. The  will  could  not  be  probated  unless,  without  their 
testimony,  there  was  the  proper  number  of  disinterested 
witnesses.  This  rule  has  been  modified  by  statute.  In  Mis- 
souri, if  an  attesting  witness  is  interested  in  the  will  as  a 
legatee  or  devisee,  he  may  be  admitted  to  prove  the  execu- 
tion of  the  will,  but  the  devise  or  legacy  to  him  will  be 
void,  except  charges  on  lands  for  payment  of  debts,  unless 
the  will  is  attested  by  a  sufficient  number  (two  or  more)  of 
other,  competent  witnesses,  in  which  case  it  will  be  valid. ^^ 
And  if  the  witness  would  be  entitled  to  any  share  of  the 
testator's  estate,  by  descent  or  distribution,  if  the  will 
should  not  be  established,  it  will  be  saved  to  him,  not  ex- 
ceeding the  value  of  the  bequest  or  devise  made  to  him  in 
the  will,  and  he  may  recover  it  from  the  devisees*  or  legatees 
named  in  the  will,  in  proportion  to  the  parts  devised  and 
bequeathed  to  them.  So  if  the  witness  has  been  paid,  or 
has  accepted  or  released,  or  refuses  on  tender  to  accept  the 
bequest  given  to  him  by  the  will,  he  must  be  admitted  to 
prove  its  execution.  If  such  a  witness  dies  in  the  life  time 
of  the  testator,  or  before  he  receives  or  releases  or  refuses 
to  receive  or  release  or  tender  his  legacy  or  bequest,  he 
must  be  deemed  a  legal  witness  to  the  execution  of  the  will. 
A  witness  who  has  released  or  received  or  refused  to  re- 
ceive his  bequest,  in  order  to  his  examination  concerning  the 
execution  of  the  will,  cannot  demand  or  receive  any  profit 
or  benefit  from  the  estate  or  any  bequest  or  compensation 
therefor  of  any  person,  except  as  above  stated.  If  by  the 
will  real  estate  is  charged  with  a  debt,  the  creditor  whose 
debt  is  so  charged,  being  an  attesting  witness  to  the  will, 
may  be  admitted  to  prove  its  execution. ^^ 

SB  Rev.  St.  1909,  §§  570-572  (inclusive) :  Grimm  v.  Tittman,  113 
Mo.  56,  20  S.  W.  664:  Graliam  v.  O'Fallon,  4  Mo.  33S ;  Hogan  v. 
Ilinchey.  195  Mo.  527.  94  S.  W.  522;  Miltenberger  v.  Miltenberger, 
78  Mo.  21. 

S6  Rev.  St.  1909,  §§  573-577  (inclusive);  Grimm  v.  Tittman,  113 
Mo.  56,  20  S.  W.  664:    Miltenberger  v.  Miltenberger,  78  Mo.  27. 


26  FORM    AND   MANNER    OF   MAKING    WILLS  §  29 

A  mere  executorship  under  the  will  is  not  a  beneficial  ap- 
pointment which  interferes  with  the  right  of  the  executor 
to  be  a  subscribing  witness  to  the  will,  but  if  he,  is  a  devisee 
or  legatee  he  stands  in  the  position  of  any  other  devisee  or 
legatee  who  attests  a  will,  and  can  be  admitted  to  prove  its 
execution  on  the  same  terms  as  such  other  witnesses." 

§  30.  Attestation — Clause. — The  attestation  of  the  wit- 
nesses should  be  written  and  subscribed  at  the  conclusion 
or  end  of  the  will,  opposite  or  near  the  signature  of  the  tes- 
tator. The  simple  signature  of  the  witnesses  is  enough. 
It  is  not  essential  that  the  attestation  clause  should  show 
upon  its  face  that  the  witnesses  subscribed  in  the  presence 
of  the  testator.  The  witnesses  will  be  permitted  to  prove 
that  all  the  forms  were  in  fact  complied  with,  although  the 
attestation  clause  is  silent  on  the  subject. ^^  It  would  be 
better,  perhaps,  to  show  on  the  face  of  the  instrument,  that 
all  the  statutory  formalities  have  been  complied  with  in  its 
execution.  It  not  only  affords  presumptive  evidence  of  the 
facts,  in  case  of  the  death  or  failure  of  the  memory  of  the 
witnesses,  but  it  also  shows  that  the  person  who  prepared 
the  will  knew  what  formalities  were  required,  and  tends  to 
raise  the  presumption  that  he  gave  the  testator  and  wit- 
nesses the  necessary  information  in  relation  thereto.  The 
importance  of  reading  the  whole  will  in  the  presence  of  the 
testator  and  witnesses,  in  case  of  a  blind  or  illiterate  per- 
son, to  afford  certain  proof  of  the  validity  and  identity  of  the 
instrument  as  the  last  will  of  the  testator,  will  be  apparent 
to  every  one. 

§  31.  Care  in  Drafting  Will. — In  drafting  a  will  great 
care  should  be  taken  to  couch  its  provisions  in  plain,  simple 
language,  avoiding  all  technical  terms,  and  doubtful  phrase- 
ology and  making  such  explanations  as  will  avoid  all  un- 
certainty as  to  the  particular  person  or  property  intended, 
or  as  to  the  nature  and  quantity  of  estate  or  interest  in- 
tended. And,  if  it  is  the  intention  to  adopt  any  paper  or 
other  extraneous  matter  as  a  part  of  the  will,  it  should  be 
referred  to  in  such  a  manner  as  shall,  with  the  aid  of  parol 
evidence  properly  admissible,  leave  no  doubt  of  its  identity. 

3  7  Rev.  St.  1900,  §  570. 

3  8  Murphy  V.  Murphy,  24  Mo.  .526;  Berlu'ret  v.  Berberet,  i;}l  Mo. 
399,  .33  S.  W.  Gl,  .52  Am.  St.  Rep.  034 ;  Avaro'  v.  Avaro,  2.35  Mo.  424, 
138  S.  W.  500;  Lorts  v.  Wash,  175  Mo.  loc.  cit.  503,  75  S.  W.  95; 
Craig  V.  Craig,  156  Mo.  358,  361,  56  S.  W.  1097. 


§  31  FORM    AND    MANNER   OF   MAKING    WILLS  27 

It  is  the  constant  experience  of  those  enj^aged  in  the  settle- 
ment of  estates,  that  much  disappointment  of  the  testator's 
expectations  supervenes,  in  spite  of  all  the  efforts  of  the 
courts  to  prevent  it,  on  account  of  the  ignorance  of  the  tes- 
tator in  regard  to  the  meaning,  force  and  legal  effect  of  the 
language  employed  in  the  will.  A  few  forms  are  furnished, 
which  may  be  useful  as  a  general  guide  for  drafting  wills: 

I,   R.   It.,  of  the  County  of  in   the   State  of  aged 

years,  being  of  sound  mind,  do  make  and  publish  this  my  last 

will  and  testament,  as  follows: 

1.  I  reiiuest  that  my  funeral  be  conducted  under  the  direction 
of  my  beloved  wife  and  in  a  manner  suitable  to  my  means  and  po- 
sition in  life,  and  that  a  suitable  monument  or  stone  be  placed  by 
her  to  mark  the  linal  resting  place  of  my  remains,  the  cost  of  which 
shall  be  considered  as  funeral  expenses.  And  I  direct  that  my  fu- 
neral charges,  the  expenses  of  administering  on  my  estate,  and  all  my 
just  debts,  be  paid  out  of  my  personal  estate;  and  if  that  be  in- 
sufticient,  I  expressly  authorize  my  executor,  hereinafter  named,  to 
sell,  at  public  or  private  sale,  the  wliole  or  such  part  of  my  real 

estate,  as  may  be  sufticient  for  that  purpose,  fir.st  selling  the  

(designate  what  land  shall  be  first  sold.) 

2.  I  give  and  bequeatli  to  my  beloved  wife,  M..  the  home  place, 

or  farm  on  which  I  now  live,  described  as  follows:  ,  to  hold 

aiid  enjoy  absolutely  in  fee  simple,  and  the  sum  of  dollars, 

to  be  received  and  accei)ted  by  her  in  lieu  of  dower,  and  of  any  dis- 
tributive  share  in  my  personal  estate.     I  give  to   my  niece,   Mary 

J.  Farmer,  the  sum  of dollars.     I  give  to  Mariah  Foster,  my 

stepdaughter  dollars,  etc.,  etc. 

(After  setting  out  all  the  specific  devises  or  bequests,  say:)  All 
the  rest,  residue,  and  remainder  of  my  estate,  real  and  personal, 
I  give,  devise  and  beiiueath.  to  my  children  or  their  heirs,  to  be  di- 
vided equally  between  them. 

I  appoint  my  son,  Henry,  executor  of  this  my  will,  revoking  any 
former  will  by  me  made,  and  I  authorize  and  empower  my  said  ex- 
ecutor In  the  settlement  of  my  estate  and  of  any  debts  due  me,  to 
compromise  such  debts,  and  if  he  thinks  it  advantageous  to  my 
estate  to  accept  in  satisfaction  less  than  the  full  amount  thereof. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name,  this 
day  of ,  19—. 

The  foregoing  instrument  was  at  the  date  thereof  signed  and  de- 
clared by  the  said  R.  R.  to  be  his  last  will  and  testament,  in  the 
presence  of  us,  who.  at  his  request  and  in  his  presence,  and  in  the 
presence   of  each  other,  have   subscribed   our   names   as   witues.ses 

thereto.  A.  B.  of  

C.  D.  of  

E.  F.  of  

(Provision  in  a  will  creating  as  to  residue  of  estate  not  specifically 
devised  or  beipieathed  a  life  estate  in  wife  and  remainder  to  chil- 
dren and  their  descendants.) 

And  lastly  all  the  rest,  residue  and  remainder  of  my  estate  what- 
soever, real,  personal  and  mixed,  and  wherever  situate,  I  give,  de- 


28  rOEM   AND   MANNEB   OF  MAKING   WILL8  §  31 

vise  and  betiueatli  to  my  beloved  wife,  M.  B..  to  have  and  to  bold 
for  her  natural  life,  and  at  her  death  to  be  divided  equally  between 
my  children,  or  the  descendants  of  such  as  shall  not  then  be  living, 
per  stirpes  and  not  per  capita,  to  have  and  to  hold  to  them  and 
their  heirs  forever.  The  devise  and  bequest  to  my  said  wife  is  to 
be  in  lieu  of  dower,  and  of  all  her  right  of  dower  in  any  lands  and 
tenements  of  which  I  may  be  seized  during  my  marriage  with  said 
M.  B. 

Another  General  Form  of  a  Codicil  to  a  Will,  Where  Several 
Legacies  are  Revoked 

Whereas  I,  A.  B.,  of ,  have,  by  my  last  will  and  testament, 

in  writing,  duly  executed,  bearing  date,  etc.,  given  and  bequeathed 
to,  etc.: 

Now  I,  the  said  A.  B.,  do  make  this  codicil  to  my  said  will,  and  I 
do  hereby  revoke  the  said  legacies  by  my  said  will  given  to  J.  K. 
and  L.  M.,  and  I  do  give  to  each  of  them,  the  said  J.  K.  and  L.  M., 

the  sum  of  dollars  only,    and  I   give  unto,  etc.     And  I   do 

ratify  and  confirm  my  said  will  in  everything  except  where  the  same 
is  hereby  revoked  and  altered  as  aforesaid. 

In  witness,  etc.  ^-  ^^ 

Signed  and  published  by  the  said  A.  B.  as  and  for  a  codicil  to  be 
added  to  and  be  considered  as  a  part  of  his  last  will  and  testament, 
in  the  presence  of  us,  who  at  his  request  and  in  his  presence,  and  in 
the  presence  of  each  other,  have  subscribed  our  names  hereto. 

J.  K. 
L.  M. 
N.  O. 
'A  Nuncupative  Will 

The  following  is  the  will  of  A.  B.,  who  was  a  mariner  at  sea, 

made  on  the  ,  (or  who  was  a  soldier  in  the  military  service 

of  the  United  States,  etc.)  and  declared  by  him  by  word  of  mouth 
at  the  time  of  his  last  sickness,  and  immediately  prior  to  his  death, 
which  occurred  at  six  o'clock  p.  m.  of  the  same  day,  in  presence  of 
us,  who  at  the  time  of  pronouncing  the  same  were  requested  by  the 
said  testator  to  bear  witness  that  such  was  his  will,  and  who  have 
subscribed  our  names  as  witnesses  thereof: 

"My  will  is  that  my  sister  Ada  shall  have  my  gold  ring,  and  that 
my  brother  John  shall  have  my  sword  and  military  equipments,  and 
that  my  dear  old  mother  shall  have  all  moneys  and  wages  due  me 
from  the  government,  or  from  any  person  or  persons  whomsoever," 

etc. 

Which  said  will  was  reduced  to  writing  by  the  said  E.  F.  in  pres- 
ence of  the  said  C.   D.  and  by   us  subscribed  this  day  of 

.  19-.  E.  F. 

C.  D. 

Another  Form  for  a  Nuncupative  Will 
The  unwritten  and  nuncupative  last  will  and  testament  of  A.  J., 

deceased,  pronounced  on  the day  of ,  19 — : 

"I  give  to  my  dear  father  and  mother  to  be  shared  by  them  only, 

and  for  their  mutual  benefit,   all   my  personal   effects,   moneys  and 


§  31  FORM    AND    MANNER    OF    MAKING    WILLS  29 

wages  due  me  from  any  source  whatsoever,  not  otherwise  disposed 
of  by  nie.     I  give  my  bay  horse  to  my  brother  Charles,  etc.,  etc." 

We,  C.  D.  and  E.  F.  do  certify  tliat  tlie  above  and  foregoing  is 
the  last  will  and  testament  of  A.  J.,  deceased;  that  we  were  pres- 
ent at  the  making  thereof;  that  the  said  A.  J.  at  the  time  of  pro- 
nouncing the  same,  did  re(iuest  the  said  C.  D.  who  was  there  pres- 
ent to  bear  witness  that  such  was  his  will ;  that  said  will  was  made 
at  the  time  of  the  last  sickness  and  at  the  dwelling  house  of  the  said 
deceased  (or  at  the  house  of  G.  H.  whore  he  had  been  residing  for 

the  space  of  ten  days  or  more,  or  at  the  house  of  — • where  he 

was  taken  sick,  and  died  before  his  return  home.)  Which  said  will 
was  reduced  to  writing  by  the  said  C.  D.  in  presence  of  the  said 
E.  F.  and  bv  us  subscribed,  this day  of ,  19 — . 

C.  D. 

E.  F. 


30  DISINHERITING   WIFE   OR  CHILD  §  32 

CHAPTER  III 

DISINHERITING  WIFE  OR   CHILD 

§  32.  Disinheriting  wife  or  child. 

33.  Same — Estate  must  be  devised  or  bequeathed. 

34.  Child  not  disinherited  unless  named  or  provided  for. 

35.  Same. 

36.  Same — How  named. 

37.  Same. 

38.  Effect  of  such  omission  on  the  will. 

39.  Same — Rights  of  child  omitted  in  the  estate. 

40.  Agreement  to  dispose  of  property  by  will. 

§  32.  Disinheriting. — In  Missouri  the  wife  has  an  in- 
choate interest  in  the  real  estate  of  her  husband,  called 
dower  and  homestead,  which  is  vested  on  his  death,  and 
which  she  cannot  be  deprived  of  by  his  will,  or  his  convey- 
ance in  which  she  does  not  join.^  But  she  has  no  such  right 
or  interest  in  his  personal  estate.  He  can  sell  or  give  it  away 
without  her  consent,  passing  a  good  title,  to  the  very  last 
moment  of  his  life.  He  can  bequeath  by  will  particular  ar- 
ticles of  personal  property  clear  of  all  claims  of  his  widow, 
and  can  dispose  of  all  his  personal  estate  save  what  the  stat- 
ute expressly  gives  to  the  widow. ^  At  the  moment  of  his 
death,  when  the  will  takes  efifect,  the  law  also  vests  the  ti- 
tle to  certain  articles  of  property  in  the  widow,  therefore 
the  will  does  not,  and  cannot,  deprive  her  of  the  articles  al- 
lowed by  law  as  the  absolute  property  of  the  widow. ^  If 
a  bequest  is  made  in  lieu  of  the  widow's  statutory  rights  in 
the  personal  property  of  her  deceased  husband,  the  will 
should  so  state  in  specific  language.* 

Blackstone  says,  that  by  the  common  law  as  it  stood  at 
late  as  Edward  III,  a  man  could  not  deprive  his  widow  of 
the   one-third   of  his  personal   estate,   or   his    children   of 

1  Rev.  St.  1909,  §  6704 ;  Rev.  St.  1909,  §  367 ;  Gladney  v.  Berkley, 
75  Mo.  App.  98 ;  Bogart  v.  Bogart,  138  Mo.  419,  40  S.  W.  91 ;  Mills 
V.  Mills,  141  Mo.  195,  42  S.  W.  709;  Newton  v.  Newton,  162  Mo.  173, 
61  S.  W.  881;  Hall  v.  Smith,  103  Mo.  289,  15  S.  W.  621;  Chouteau 
V.  Missouri  Pac.  Ry.  Co.,  122  Mo.  375,  22  S.  W.  458;  In  re  Fergu- 
son's Estate,  206  Mo.  203,  104  S.  W.  108. 

2  Brandon  v.  Dawson,  51  Mo.  App.  237. 

3  Rev.  St.  1909,  §§  114-116 ;  Glenn  v.  Gunn,  88  Mo.  App'  442 ;  Ilas- 
enritter  v.  Hasenritter,  77  Mo.  162. 

4  Ellis  V.  Ellis,  119  Mo.  App.  63,  90  S.  W.  260. 


§  33  DISINHERITING    WIFE    OR   CHILD  31 

another  third,  but  this  law  has  been  altered  by  imper- 
ceptible degrees,  and  the  deceased  may  now  by  will  be- 
queath the  whole  of  his  goods  and  chattels  though  we  can- 
not trace  out  when  first  this  alteration  began."'  If  the 
parent  die  intestate  his  children  succeed  to  his  property  un- 
der the  law,  but  they  have  no  right  to  it,  either  vested  or 
contingent,  which  they  may  not  be  deprived  of  by  will. 
The  right  is  absolute  to  dispose  of  all  of  one's  property  ex- 
cept that  which  the  law  secures  to  the  widow,  and  the  por- 
tion required  to  pay  debts  and  expenses  of  administration. 
It  follows  then,  that  a  person  competent  to  make  a  will  may 
entirely  disinherit  his  children,  and  his  motives  for  such  an 
act  cannot  be  called  in  question.  Nor  is  the  hardship  of  the 
case  of  any  weight,  further  than  as  a  circumstance  to  be 
considered  in  connection  with  other  evidence  tending  to 
show  insanity  or  other  mental  defect  in  the  testator.'^ 

§  33.  Same. — But  in  order  to  disinherit  or  cut  off  an 
heir  at  law,  the  estate  must  be  bequeathed  expressly,  or  by 
fair  implication  to  some  other  person  competent  to  take  and 
hold  by  de\ise."  It  is  not  sufficient  to  declare  by  the  will 
that  such  heir  shall  not  have  any  portion  of  the  estate,  leav- 
ing it  to  descend  to  others  under  the  law.  And  a  bequest 
to  the  wife  or  child  of  such  portion  of  the  estate  as  the  law 
gives  to  her  or  it.  and  nothing  more  or  diff'crent,  is  void, 
and  such  party  takes  under  the  law.  That  is,  when  the  will 
devises  precisely  the  same  estate  to  the  heir  at  law  that  he 
would  take  by  descent,  his  title  by  descent  will  have  pre- 
cedence over  his  title  by  devise.*  *  And  in  such  case  the 
widow  may  renounce  the  will  and  hold  the  property  under 

B  2  Black.  Com.  492 ;    Williams  on  Per.  Prop.  250. 

6  Maddox  v.  Maddox,  114  Mo.  35.  21  S.  W.  499,  35  Am.  St.  Rep. 
734;  McFadin  v.  Catron.  120  Mo.  252.  .55  S.  W.  506;  Kiggin  v.  Board 
of  Trustees  of  Westminster  College,  IGO  Mo.  570,  61  S.  W.  S03. 

-  Hurst  V.  Yon  de  Yeld,  1.58  Mo.  2.39,  5S  S.  W.  1056. 

8  Davidson  v.  Koehler,  76  Ind.  39S. 

*A  somewhat  different  conclusion  is  reached  in  the  case  of  Ball 
V.  Ball,  165  Mo.  312,  loc  cit.  327,  65  S.  W.  552.  555,  where  the  court 
says:  "In  order  to  deprive  the  widow  of  her  homestead  rights,  she 
must  have  accepted  imder  the  will  of  her  deceased  husband  property 
gi'eater  in  amount  than  that  to  which  she  would  otherwise  have  been 
entitled  by  law  (Burgess  v.  Bowles.  99  Mo.  550  [12  S.  W.  341,  13 
S.  W.  991)  or  the  intention  to  exclude  these  rights  is  manifest  from 
the  provisions  of  the  will ;  otherwise  she  can  claim  both  the  benefits 
given  her  bj'  the  law  and  will." 


32  DISINHERITING   WIFE    OR   CHILD  §  34 

the  law.  But  if  the  testator  devise  any  real  estate  to  his 
wife,  it  will  stand  in  lieu  of  her  dower  in  the  real  estate  of 
which  he  dies  seized,  unless  it  be  otherwise  declared  by 
the  will.®  And  in  such  case  she  will  not  be  entitled  to 
dower  in  his  real  estate  unless  she  refuse  to  accept  the  pro- 
vision made  for  her  by  the  will,  within  the  time  and  in  the 
manner  prescribed  by  statute.^"  No  formal  acceptance  is 
necessary  in  order  to  take  under  the  will,  and  after  having 
once  elected  to  take  under  the  will,  she  may  renounce  the 
will  within  twelve  months  and  take  under  the  law.^^ 

§  34.  Child  not  Disinherited  unless  Mentioned  in  the 
Will. — Ordinarily  a  child  is  disinherited  if  the  parent  be- 
queath all  his  estate  to  some  other  person,  notwithstanding 
such  child  may  not  be  mentioned  or  provided  for  in  the 
will.  But  we  have  a  statute  in  Missouri  which  declares  that, 
"If  any  person  make  his  last  will,  and  die  leaving  a  child  or 
children,  or  descendants  of  such  child  or  children,  in  case 
of  their  death  not  named  or  provided  for  in  such  will,  al- 
though born  after  the  making  of  such  will,  or  the  death  of 
the  testator,  every  such  testator,  so  far  as  shall  regard  any 
such  child  or  children,  or  their  descendants,  not  provided 
for,  shall  be  deemed  to  die  intestate;  and  such  child  or  chil- 
dren, or  their  descendants,  shall  be  entitled  to  such  propor- 
tion of  the  estate  of  the  testator,  real  and  personal,  as  if 
he  had  died  intestate,  and  the  same  shall  be  assigned  to 
them;  and  all  the  other  heirs,  devisees  and  legatees  shall 
refund  their  proportional  part."  But  if  such  omitted  per- 
sons have  received  their  equal  proportion,  with  other  chil- 
dren, of  the  estate  in  the  testator's  life  time,  by  way  of  ad- 
vancement, they  will  not  be  entitled  to  any  thing  more  by 
virtue  of  the  statute. ^^ 

§  35.  Same. — "This  provision  of  the  statute,"  says  the 
Supreme  Court  of  Missouri,  "has  been  several  times  before 
this  court  for  judicial  construction  and  it  may  now  be  con- 

9  Register  v.  Hensley,  70  Mo.  189. 

10  Rev.  St.  1909,  §§  360,  .361;  Kaes  v.  Gross,  92  Mo.  647,  3  S.  W. 
840,  1  Am.  St.  Kep.  767 ;  Young  v.  Boardman,  97  Mo.  181,  10  S.  W. 
48 ;  Schorr  v,  Etling,  124  Mo.  42,  27  S.  W.  395 ;  Dougherty  v.  Barnes, 
64  Mo.  159 ;  Bogart  v.  Bogart,  138  Mo.  419,  40  S.  W.  91 ;  McKee  v. 
Stuckey,  181  Mo.  719,  81  S.  W.  100;   post,  §  120. 

11  Register  v.  Hensley,  70  Mo.  189;  Lilly  v.  Menke,  143  Mo.  137, 
44  S.  W.  730 ;    Bretz  v.  INIatney,  00  Mo.  444. 

12  Rev.  St.  1909,  §§  544,  545;  Thomas  v.  Black,  113  Mo.  00,  20  S. 
W.  657 ;    Woods  v.  Drake,  135  Mo.  393,  37  S.  W.  109. 


§  36  DISINHERITING    WIFE    OR    CHILD  33 

sidered  as  settled  that  the  object  of  it  is  to  produce  an  in- 
testacy only  when  the  child  or  the  descendant  of  such  child 
is  unknown  or  forgotten,  and  thus  unintentionally  omitted; 
and  the  presumption  that  its  omission  is  unintentional  may 
be  rebutted  when  the  tenor  of  the  will  or  any  part  of  it  in- 
dicates that  the  child  or  grandchild  was  not  forgotten." 
The  statute  extends  only  to  a  case  of  entire  omission,  and 
the  mention  of  a  child  without  a  legacy  or  other-  provision 
for  him  is  sufficient  to  cut  him  off  from  a  distributive  share 
of  the  estate;  ^*  and  whenever  the  mention  of  one  person, 
by  a  natural  association  of  ideas,  suggests  another,  it  may 
reasonably  be  inferred  that  the  latter  was  in  the  mind  of 
the  testator  and  was  not  forgotten  or  unintentionally  omit- 
ted. Thus  it  has  been  decided  that  by  the  mention  of  a 
daughter,  though  dead  at  the  time  of  making  the  will,  it  will 
be  inferred  that  her  children  were  not  forgotten. ^^  The 
mention  of  grandchildren  will  exclude  the  parent.^"  Nam- 
ing a  son-in-law  is  sufficient  to  show  the  daughter  was 
brought  to  the  recollection  of  the  testator;  and  naming 
two  grandchildren  will  indicate  that  their  brothers  and  sis- 
ters not  named  were  intentionally  omitted.^' 

§  36.  Same. — The  decision  from  which  we  have  taken 
the  above  extract  decides,  on  the  authority  of  the  cases 
cited  in  it,  that  a  bequest  to  a  son-in-law%  though  he  is  not 
designated  as  such,  is  a  naming  of  the  daughter  within  the 
statute. ^^  This  case,  and  the  principles  enunciated  b}^  it, 
as  will  be  seen  by  the  examples  given,  rest  upon  the  de- 
cisions of  the  Massachusetts  court,  made  upon  a  statute 
which  had  this  additional  provision  in  it,  viz. :  "Unless  it 
shall  appear  that  such  omission  was  intentional  and  not  oc- 
casioned by  any  mistake  or  accident."  ^"  Decisions  founded 
upon  a  statute  so  different  from  ours  cannot  with  much 
propriety  be  invoked  as  authority  for  its  construction.  The 
statute  of  Missouri  is  positive  in  its  terms — nothing  is  said 
in  it  about  the  omission  being  intentional  and  not  occasioned 

1 3  Guitar  v.  Gordon,  17  Mo.  40S ;  Beck  v.  Metz,  25  Mo.  70 ;  Woods 
y.  Drake,  135  Mo.  :i93,  37  S.  W.  109 ;   Block  v.  Block,  3  Mo.  594. 

14  Block  V.  Block,  3  Mo.  594. 

IB  Guitar  v.  Gordon,  17  Mo.  408. 

18  Woods  V.  Drake,  135  Mo.  393,  37  S.  W.  109;  Willard  v.  Darrah, 
IGS  Mo.  6no.  OS  S.  W.  1023,  90  Am.  St  Rep.  4GS. 

17  Hockensiuith  v.  SUisber,  2G  Mo.  237. 

18  Hockensmith  v,   Slusher,  26  Mo.  237. 

19  Wilson  V.  Fosket,  G  Mete.  (Mass.)  404,  39  Am.  Dec.  736. 

KEI..M0.P.G.— 3 


34  DISINHERITING   WIFE   OR   CHILD  §  37 

by  accident  or  mistake.  If  the  name  of  the  child  is  omitted 
in  the  will  and  no  provision  be  made  for  it,  the  testator 
shall  as  to  such  child  "be  deemed  to  die  intestate,"  and 
whether  the  omission  was  intentional  or  otherwise — 
whether  the  testator  did  or  did  not  have  the  child  in  his 
mind  cannot  under  a  fair  construction  of  the  statute  affect, 
in  the  least,  the  right  of  the  child  to  a  distributive  share  of 
the  estate.  The  only  thing  that  can  in  such  case  preclude 
the  omitted  child  is  an  advancement  to  it  by  the  testator 
in  his  life  of  an  equal  share.  And  although  the  child  may 
be  disinherited  by  the  terms  of  the  will,  yet  unless  the  prop- 
erty of  the  testator  be  disposed  of  to  other  persons  or  ob- 
jects, such  disinherited  child  will  take  by  descent  the  prop- 
erty or  its  share  of  the  property  remaining  undisposed  of 
by  the  will.-*' 

§  37.  Same.— Making  a  bequest  to  a  son-in-law,  not 
named  as  such,  is  not  naming  the  daughter,  although  it 
might,  perhaps,  be  regarded  as  a  provision  for  her.  To 
say  that  the  son-in-law  should  have  no  part  of  his  estate 
would  not  necessarily  exclude  the  daughter.  And  the  chil- 
dren are  not  excluded  as  mentioned  in  the  will,  when  the 
wife  is  made  sole  heir  to  all  the  testator's  property  to  the 
exclusion  of  every  other  person  or  persons.-^  But  making 
mention  of  a  child  not  by  name,  but  as  "our  child,"  in  con- 
nection with  a  bequest  to  the  wife,  the  testator  having  but 
one  child,  was  regarded  as  naming  the  child  within  the 
meaning  of  the  statute.-^ 

To  cut  a  child  out  the  will  must  show  on  its  face  that  the 
testator  remembered  him;  he  need  not  be  named  ;-^  but 
unless  he  is  named  or  alluded  to  in  such  manner  as  to  show 
he  was  in  the  testator'5  mind,  the  presumption  is  conclusive 
that  he  was  forgotten.^*  It  cannot  be  shown  by  parol  evi- 
dence that  the  child  was  not  forgotten.-^ 

Naming  children  as  a  class,  without  further  description, 
includes  all  who  answer  that  description  at  the  time  the 
will  takes  effect.'''*^ 

20  Hurst  V.  Von  de  VeW.  158  Mo.  2.39,  58  S.  W.  1056. 

21  Bradley  v.  Bradley,  24  Mo.  311;  Hargadiiie  v.  Pulte,  27  Mo. 
423. 

22  Beck  V.  Metz,  25  Mo.  70. 

23  I'ouuds  V.  Dale,  48  Mo.  270. 

24  Wetherall  v.  Harris,  51  Mo.  65. 

2  5  Thomas  v.  P.lack,  113  Mo.  66,  20  S.  W.  657. 

26  Allen  V.  Claybrook,  58  Mo.  124 ;    Beck  v.  Metz,  25  Mo.  70. 


§  40  DISINHERITING   WIFE   OR   CHILD  35 

§  38.  Effect  of  Such  Omission  on  the  Will.— The  omis- 
sion to  name  or  provide  for  a  child  or  grandchild  does  not 
necessarily  invalidate  the  will ;  for  it  may  be  shown,  if  such 
be  the  fact,  by  evidence  aliunde  that  the  omitted  child  was 
provided  for  in  the  lifetime  of  the  testator  by  an  advance- 
ment equal  to  its  full  share  of  the  estate,  or  the  child  may 
renounce,  or  never  assert  its  right  against  the  will,  and  in 
every  such  case,  the  testament  will  stand  and  the  title 
passed  by  it  must  remain  in  the  devisee  or  legatee.-'  The 
will  is  not  void,  but,  like  the  deed  of  an  infant,  voidable, 
and  can  only  be  avoided  by  the  parties — children,  injuri- 
ously affected  by  it.  It  is  valid  and  conclusive  as  against 
strangers  and  third  persons,  and  will  pass  a  title  to  the  dev- 
isee though  a  defeasible  one,  as  against  the  children. 

§  39.  Same — Right  of  Child. — If  a  person  die  intestate 
leaving  children,  they  are  entitled  to  the  whole  of  his  estate 
subject  to  the  widow's  dower  and  homestead,  therefore  if 
he  makes  a  will,  and  does  not  name  or  provide  for  any  of 
them,  he  will  as  to  them  "be  deemed  to  die  intestate,"  and 
the  whole  estate  will  descend  to  them  and  in  case  of  the 
death  of  an  unnamed  child,  the  share  of  such  child  descends 
to  his  heirs, -^  and  they  may  maintain  ejectment  for  the  land, 
to  which  they  are  entitled  in  right  of  their  ancestor,  the 
same  as  if  there  w-as  no  will.  But  if  all  the  children  are  not 
omitted — some  are  named  or  provided  for,  and  others  not 
— the  legacies  and  devises  cannot  be  treated  as  nullities, 
but  the  legatees  and  devisees  would  be  bound  to  refund  or 
contribute  their  proportionate  parts,  necessary  to  make  for 
the  omitted  children  a  share  equal  to  that  which  they  would 
have  been  entitled  to  in  the  estate,  if  there  had  been  no  will. 
It  seems  that  partition  would  be  a  proper  remedy  in  such  a 
case,  and  resort  might  be  had  to  the  court  by  petition  for 
contribution  in  which  advancements  may  be  adjusted.-'* 

§  40.     Agreement  to  Dispose  of  Property  by  Will. — If 

made  upon  sufficient  consideration,  an  agreement  to  dis- 
pose of  property  by  will  in  a  particular  way  is  binding,  and 
if  the  contract  be  oral,  part  performance  of  it  will  take  it 

27Chouquette  v.  Barada,  23  Mo.  331;    Id.,  28  Mo.  401. 

2  8  Sc'hueider  v.  Koester,  54  Mo.  500. 

20  Rev.  St.  lOtm,  §§  545,  5S2 ;  Thomas  v.  Black,  113  Mo.  66,  20 
S.  W.  G57;  Woods  v.  Drake,  135  Mo.  393,  37  S.  W.  109;  Breideii- 
stein  V.  Bertram,  19S  Mo.  328,  95  S.  W.  828;  Story  v.  Story,  188  Mo. 
110,  86  S.  W.  225. 


36  DISIXHERITING    WIFE    OR    CHILD  §  40 

out  of  the  statute  of  frauds,  when  a  refusal  to  perform  it 
would  work  a  fraud  on  the  other  party.^"  But  in  such  case 
the  injured  party  would  be  compelled  to  resort  to  a  pro- 
ceeding in  equity,  by  which  proper  relief  might  be  ob- 
tained.^^  But  an  intention  to  dispose  of  property  by  will, 
which  for  any  reason  fails,  cannot  be  enforced. ^^ 

3  0  Fuchs  V.  Fuchs.  48  Mo.  App.  IS;  Gupton  v.  Gupton,  47  Mo.  .S7; 
Sutton  V.  Hayden,  62  Mo.  101;  Sharkey  v.  McDermott,  91  Mo.  647, 
4  S.  W.  107. 

31  Fuchs  V.  Fuchs,  48  Mo.  App.  18;  Teats  v.  Flanders,  118  Mo. 
mo,  24  S.  W.  126. 

32  Anderson  v.  Scott,  94  Mo.  637,  8  S.  W.  235 ;  Brownlee  v.  Fen- 
wick,  103  Mo.  420,  15  S.  W.  611 ;  In  re  Soulard's  Estate,  141  Mo.  642, 
43  S.  W.  617. 


§  41  NUNCUPATIVE   OB  UNWRITTEN    WILLS  37 

CHAPTER  IV 
OF  NUNCUPATIVE  OR  UNWRITTEN  WILLS 

§  41.  Nuncupative  will — When  allowed. 

42.  Same — In  Missouri. 

43.  Same — By  mariner  or  soldier. 

44.  Gift  causa  mortis  and  inter  vivos. 

§  41.  A  Nuncupative  Will  is  when  the  testator,  without 
any  writin^^,  doth  declare  his  will  before  a  sufficient  num- 
ber of  witnesses.^  At  common  law  such  a  will  was  suffi- 
cient for  the  disposal  of  personal  estate,  but  was  void  as  to 
real  estate.  In  ignorant  ages  there  was  no  other  way  of 
making  a  will  than  by  words  or  signs.  But  by  the  time  of 
Henry  the  VHI,  and  especially  in  the  age  of  Elizabeth  and 
James,  letters  had  become  so  generally  cultivated,  and 
reading  and  writing  so  widely  diffused,  that  verbal,  un- 
written, or  nuncupative  wills  were  confined  to  extreme 
cases,  and  held  to  be  justified  only  on  the  plea  of  necessi- 
ty.* Such  wills  were  found  to  be  liable  to  great  frauds  and 
impositions,  and  the  occasion  of  fearful  perjuries,  conse- 
quently the  statute  of  frauds  laid  them  under  many  restric- 
tions, except  when  made  by  "any  soldier  being  in  actual 
military  service,  or  any  mariner  or  seaman  being  at  sea." 
Afterward  by  the  new  statute  of  wills,^  nuncupative  wills, 
except  wills  of  mariners  and  soldiers,  were  altogether  ren- 
dered invalid  in  England.  This  latter  statute  has  been  fol- 
lowed in  New  York,  and  perhaps  in  a  few^  other  states,  but 
the  great  majority  of  American  states  adhere  to  the  for- 
mer, of  which  the  Missouri  statute  is  almost  a  literal  tran- 
script.* 

Blackstone  says:  "The  testamentary  words  must  be 
spoken  wath  an  intent  to  bequeath,  not  any  loose  idle  dis- 
course in  his  illness;  for  he  must  require  the  bystanders  to 
bear  witness  to  his  intention ;  the  will  must  be  made  at 
home  or  among  his  family  or  friends,  unless  by  unavoida- 
ble accident;  to  prevent  imposition  from  strangers,  it  must 

1  1  Williams  on  Ex'rs,  101. 

2  4  Kent,  633. 
8  1  Vict.  c.  26. 

*  Rev.  St.  1909,  §§  559-562  (inclusive). 


38  NUNCUPATIVE    OR   UNWRITTEN    WILLS  §  42 

be  his  last  sickness ;  it  must  not  be  proved  at  too  long  a 
distance  from  the  testator's  death,  lest  the  words  should 
escape  the  memory  of  the  witnesses,  nor  yet  too  hastily, 
and  without  notice,  lest  the  family  of  the  testator  should 
be  put  to  inconvenience  or  be  surprised."  ° 

§  42.  Same. — The  same  ingredients  are  required  in  a 
nuncupative  will  under  the  Missouri  statute.  The  estate 
bequeathed  cannot  exceed  the  value  of  two  hundred  dol- 
lars ;  the  will  must  be  proved  by  two  witnesses  who  were 
present  when  it  was  made ;  the  testator  must  request  some 
one  present  to  bear  witness  that  such  is  his  will ;  it  must 
be  made  at  the  time  of  the  last  sickness,  at  his  dwelling 
house,  or  where  he  has  resided  for  ten  days  or  more,  ex- 
cept, where  he  is  taken  sick  from  home  and  dies  before  his 
return ;  *'  it  must  be  proved  within  six  months,  or  the  sub- 
stance of  the  words  must  be  reduced  to  writing  within 
thirty  days  after  they  were  spoken ;  it  must  be  reduced  to 
writing,  and  the  widow  or  next  of  kin  must  be  furnished  a 
copy,  and  be  called  by  citation  to  contest  the  probate,  which 
cannot  be  granted  until  fourteen  days  after  the  death  of 
the  testator.^  In  New  York,  under  a  similar  statute,  the 
words  "last  sickness"  were  construed  to  mean  last  extremi- 
ty.^ The  witnesses  to  such  a  will  must  be  competent  to 
testify  on  a  trial  at  law.  It  is  not  necessary  that  all,  or  the 
exact  words  of  the  testator  should  be  reduced  to  writing, 
the  substance  of  the  words  is  all  that  is  required,  and  if  an 
independent  part  of  them  should  be  omitted  in  writing 
them,  the  residue  may  be  good,  or  if  the  two  witnesses  do 
not  agree,  as  to  all  the  bequests,  it  is  good  so  far  as  they 
do  agree,  and  no  farther. 

§  43.  Same — A  Mariner  at  Sea,  or  Soldier  in  the  mili- 
tary service  may  dispose  of  his  wages  or  personal  property 
as  he  could  at  common  law,  or  by  reducing  his  will  to 
writing.''  "Actual  military  service,"  is  the  phrase  used  in 
the  English  statute.  Under  it  the  privilege  was  confined 
to  those  who  were  at  the  time  on  an  expedition,  and  did  not 
extend  to  a  soldier  who  was  quartered  in  barracks.     But 

6  2  Blackst.  Com.  501. 
e  Rev.  St.  1909,  §  .5.59. 

7  Rev.  St.  1909,  §§  561,  562. 

8  Prince  v.  Hazelton,  20  Johns.  (N.  T.)  .502,  11  Am.  Dec.  307. 

9  Rev.  St.  1909,  §  5G0. 


§  44  NUNCUPATIVE   OR   UNWRITTEN   WILLS  30 

under  our  statute,  which  omits  the  word  actual,  it  is  be- 
lieved that  any  soldier  who  is  at  the  time  in  the  military 
service,  whether  in  barracks  or  in  the  field,  may  make  a 
nuncupative  will. 

The  term  "mariner  at  sea"  has  been  held  to  include  the 
whole  service,  officers  and  common  seamen,  alike,  whether 
in  service  of  a  man-of-war  or  a  merchant  vessel.  And  it 
has  been  also  held  that  the  words  "any  mariner,  or  soldier, 
in  the  military  service,"  includes  a  minor,  if  he  be  a  soldier 
or  seaman.^** 

At  common  law  no  particular  number  of  witnesses  is  re- 
quired, nor  any  "other  ceremonies  as  to  publication  or  at- 
testation. But  it  must  be  shown  that  the  testator  was  of 
sound  mind  and  that  he  intended  at  the  time  to  make  a 
testamentary  disposition  of  his  property.  The  factum  of 
a  nuncupative  will,  it  has  been  said,  must  be  proved  in 
every  particular,  by  evidence  more  strict  and  stringent 
than  that  of  a  written  one,  and  the  statute  in  relation  to  it 
must  be  strictly  construed  and  fully  complied  with,  in  con- 
sequence of  the  faculties  with  which  fraud  may  be  perpe- 
trated in  setting  up  such  a  will. 

§  44.  A  Gift  Causa  Mortis  and  a  Gift  Inter  Vivos  have 
some  points  of  similarity,  but  differ  in  some  respects  from 
a  nuncupative  will ;  the  gift  causa  must  be  made  by  the 
donor  in  his  last  illness  and  in  contemplation  and  expecta- 
tion of  death ;  the  other  is  a  gift  by  which  the  possession 
and  title  to  personal  property  passes  immediately  and  ir- 
revocably to  the  donee,  dependent  upon  no  condition  in  the 
future."  By  reference  to  the  statute  defining  or  providing 
for  a  nuncupative  will,  it  will  be  readily  seen  that  many 
qualifications  and  conditions  enter  into  it,  that  are  not  es- 
sentiai  to  either  form  of  gift  mentioned,  and  the  proof  must 
bring  the  facts  within  the  provisions  of  the  statute.  A  gift, 
to  take  effect  at  the  death  of  the  donor,  not  good  as  a  gift 
causa  mortis,  is  not  valid  as  a  nuncupative  will.^^ 

10  1  Williams  on  Ex"rs,  102. 

iiTygard  v.  McCdiiib.  54  Mo.  App.  85;  Ells  v.  Missouri  Pac.  Ry. 
Co..  40  Mo.  App.  165;  Standiford  v.  Standiford,  97  Mo.  2.31,  10  S. 
W.  8.36,  3  L.  R.  A.  290;  Siieatheu  v.  Suoatheu,  104  Mo.  201,  16  S. 
W.  497,  24  Am.  St.  Rep.  326. 

12  Dunn  V.  German-American  Bank,  109  Mo.  90,  18  S.  W.  1139; 
Godard  v.  Conrad,  125  Mo.  App.  105,  101  S.  W.  1108;  Tygard  v.  Mc- 
Comb,  54  Mo.  App.  85. 


40  NUNCUPATIVE    OR   UNWRITTEN    WILLS  §  44 

The  essential  element  of  a  valid  gift  causa  mortis  is  de- 
livery of  the  chattel  in  the  lifetime  of  the  donor;  if  the 
donor  die  the  gift  becomes  absolute ;  if  he  live  it  is  revoca- 
ble. Delivery  is  also  the  essential  element  of  a  valid  gift 
inter  vivos,  without  reserving  the  power  of  revocation. 
Delivery  distinguishes  a  gift  causa  mortis  from  a  nuncupa- 
tive will,  for  if  there  be  not  actual,  nor  constructive,  deliv- 
ery and  change  of  possession  in  the  lifetime  of  the  donor, 
the  transaction  must  be  supported,  if  at  all,  as  a  verbal 
will." 

isTygard  v.  McComb.  54  Mo.  App.  85;    Borland  on  Wills,  §  19. 


§  46  THE   REVOCATION   Or   WILLS  41 

CHAPTER  V 

OF  THE  KEVOCATION  OF  WILLS 

§  45.  General  methods  of  revoking. 

46.  Revocation  by  a  subswiueut  will. 

47.  Same — Does  not  revive  former  will. 

48.  Same — When  not  revoked. 

49.  Same— Of  lost  will. 

50.  By  buruinff,  cauceling,  tearing  or  obliterating. 

51.  Same — The  act  and  intention. 

52.  Same — Of  sonnd  mind  of  testator. 

53.  Same — Presumptions  as  to  revocation. 

54.  Same — How  effected  by  destruction,  etc. 

55.  By  marriage. 

56.  By  marriage  and  issue. 

57.  Same — Implied  by  alienation  of  the  estate. 

58.  Same — Not  effected  by  contract  or  incumbrance  by  testator. 

§  45.  General  Methods. — A  will  is  always  a  revocable 
instrument  during  the  life  of  the  testator.  He  may  revoke 
it  at  his  pleasure,  even  should  the  will  be  declared  irrev- 
ocable in  the  strongest  and  most  positive  terms,  because 
a  man  cannot  by  any  act  of  his  own  make  that  irrevocable 
which  in  the  judgment  of  the  law  is  in  its  very  nature  rev- 
ocable.^ But  a  will  duly  executed  must  be  revoked  by  an 
instrument  of  equal  solemnity,  or  by  some  positive  act  by 
the  testator  which  clearly  evinces  his  intention  to  revoke 
or  destroy  it,  or  by  certain  changes  in  the  testator's  situa- 
tion in  life,  as  marriage.  Under  the  statute  of  IMissouri,- 
there  are  different  modes  of  revoking  a  will  in  writing,  viz. : 

1.  By  a  subsequent  will  in  writing. 

2.  By  burning,  canceling,  tearing  or  obliterating  the 
same  by  the  testator  or  in  his  presence,  and  by  his  consent 
and  direction. 

3.  By  marriage,  or  by  marriage  and  issue. 

4.  Implied  revocation  by  alienation  of  the  estate. 

We  shall  now  proceed  to  treat  briefly  of  each  of  these  in 
their  order. 

§  46.  Revocation  by  a  Subsequent  Will. — The  making 
of  a  will  is  a  voluntary  act  of  the  testator  which  he  may  re- 

1  4  Kent,  Com.  638 ;  1  Williams  on  Ex'rs,  109 ;  Cozzens  v.  Jami- 
son. 12  Mo.  App.  452:    Bower  v.  Daniel,  198  Mo.  289,  95  S.  W.  347. 

2  Rev.   St.  1009.  §§  .5.^S-54.3. 


42  THE    REVOCATION    OF   WILLS  §  46 

peat  as  often  as  he  pleases.  But  no  man  can  die  with  two 
testaments — the  last  and  newest  is  of  force — so  that  if  there 
were  a  thousand  wills  the  last  of  all  is  the  best. 

But  the  mere  fact  of  making  a  subsequent  will  does  not 
necessarily  revoke  a  prior  one.^  Any  number  of  instru- 
ments, whatever  be  their  relative  dates,  if  duly  executed 
and  not  inconsistent  with  each  other,  may  be  admitted  to 
probate  as  together  constituting  the  last  will  of  the  de- 
ceased. If,  however,  the  latter  will  expressly  revoke  a  for- 
mer, or  the  two  be  incapable  of  standing  together,  the  first 
must  be  rejected,  and  the  latter  received.  But  if  a  subse- 
quent will  be  partially  inconsistent  with  one  of  an  earlier 
date,  the  latter  will  revoke  the  former  only  as  to  the  points 
in  which  they  are  inconsistent.  If  the  subsequent  will  make 
a  full  disposition  of  the  whole  estate  whether  wholly  or 
partially  incompatible  with  a  former  will,  it  is  a  revocation 
of  such  prior  will  in  toto,  unless  it  appears  from  the  instru- 
ment itself  that  it  was  the  intention  of  the  testator  that 
they  should  stand  together.  The  subsequent  will,  or  rev- 
ocatory instrument  must  be  duly  and  regularly  executed 
in  accordance  with  the  provisions  of  the  statute,  in  order 
to  defeat  the  former  will.'*  The  general  principle  is,  that 
bequests  are  prima  facie  to  be  taken  cumulatively,  where 
they  are  on  separate  instruments,  unless  the  latter  is  rev- 
ocatory of  the  former,^ 

§  47.     Same — Does   not   Revive    Former   Will. — It   was 

long  a  vexata  questio  whether  on  the  revocation  of  a  later 
will,  a  former  uncanceled  will  should  revive  or  not.**  At  com- 
mon law,  the  cancellation  of  the  latter  will  would  revive  the 
former.  But  the  question  is  settled  against  such  presump- 
tive revivor  by  statute,  which  enacts,  that  if,  after  the  mak- 
ing any  will,  the  testator  shall  duly  make  and  execute  a  sec- 
ond will,  the  destruction,  canceling  or  revocation  of  such 
second  will  shall  not  revive  the  first  will,  unless  it  appear 
by  the  terms  of  such  revocation,  that  it  was  his  intention  to 


3  Odenwaelder  v.  Schorr,  8  Mo.  App.  458. 

4  West  V.  West,  144  Mo.  119,  46  S.  W.  139 ;  Caeman  v.  Van  Harke, 
33  Kan.  .333,  6  Pac.  620;  Thompson  v.  Ish,  99  Mo.  loc.  cit.  171,  12 
S.  W.  512,  17  Am.  St.  Rep.  5.52;  Lindsey  v.  Stephens,  229  Mo.  600, 
129  S.  W.  641. 

5  Fosdick  V.  Sturges,  3  Phila.  (Pa.)  313,  Fed.  Cas.  No.  4,956. 

6  Goodright  v.  Glazier,  4  Burr.  2512 ;  Miller  v.  Lehman,  1  Phila. 
(Pa.)  406;    1  Williams  on  Ex'rs,  153,  pt.  1. 


§  49  THE    REVOCATION    OF    WILLS  43 

revive  and  give  effect  to  the  first  will,  or  unless  it  shall  duly 
republish  his  first  will.'^ 

It  has  been  held  in  New  York,  under  a  similar  statute, 
that  no  declarations  of  the  testator  are  competent  evidence 
on  the  question  of  revocation,  except  those  which  accom- 
pany the  act  of  revocation,  and  are  a  part  of  res  gesta.^  Nor 
is  parol  evidence  admissible  to  show  that  it  was  the  inten- 
tion of  the  testator  to  revive  the  former  by  the  destruction 
of  the  latter,  which  contained  a  clause  revoking  all  former 
wills.» 

§  48.  Same — Not  Revoked. — It  is  the  due  execution  of 
a  subsequent  will  that  causes  a  revocation  of  a  prior  one, 
therefore,  if  the  subsequent  will  is  inoperative  from  defect 
of  execution  or  attestation,  or  any  other  cause,  the  original 
will  remains  in  force;  so  that  where  the  act  of  revoking  a 
will  is  connected  with  the  making  of  another,  so  as  to  show 
that  the  testator  meant  the  revocation  of  the  old  to  depend 
upon  the  efficacy  of  the  new  will,  and  the  new  one  proves 
ineft'ectual  for  the  purpose  intended,  by  reason  of  defects, 
or  irregularity  in  its  execution,  also  fails,  and  the  original 
will  continues  in  force.  This  rule  is  confined  within  very 
narrow  limits  and  the  intention  of  the  testator  not  to  leave 
himself  without  a  w'ill  must  appear  by  clear  and  positive 
testimony.  But  a  will  deliberately  canceled  without  ac- 
cident or  mistake,  is  revoked,  though  the  testator  intends 
afterward  to  make  a  new  one,  but  omits  to  do  so.^"^  The 
rule  in  nearly  all  the  states  is,  that  no  will  can  be  revoked 
by  any  other  writing,  unless  the  instrument  of  revocation 
is  executed  with  the  formalities  required  for  the  valid  ex- 
ecution of  a  will,^^  but  there  are  some  exceptions  to  this 
rule,  for  in  some  states  it  may  be  revoked  by  any  writing 
signed  by  the  testator  declaring  the  same  to  be  revoked. 

§  49.  Same — Lost  Will. — If  a  duly  executed  will  has 
been  lost  or  misplaced  so  that  it  cannot  be  actually  de- 
stroyed or  revoked  by  cancellation,  the  testator  may,  if  he 

7  Rev.  St.  1900.  §  543 ;  Beaumont  v.  Koim,  50  Mo.  2S ;  Banks  v. 
Banks,  65  Mo.  4.32. 

8  Waterman  v.  Whitney,  1  Kern  (11  N.  Y.)  157,  per  Selden,  J. ; 
Kuukle  V.  Gates,  11  Ind.  1)5 ;   West  v.  West,  144  Mo.  119,  46  S.  W.  139. 

0  Beaumont  v.  Keim,  50  Mo.  2S. 

10  Banks  v.  Banks,  65  Mo.  432;  Varnon  v.  Varnon,  67  Mo.  App. 
534. 

11  West  V.  West,  144  Mo.  119,  46  S.  W.  1.39;  Spoonemore  v.  Cables, 
66  Mo.  579;    Caeman  v.  Van  Harke,  33  Kan.  333,  6  Tac.  620. 


44  THE   REVOCATION   OF  WILLS  §  50 

prefers  to  die  intestate,  execute  an  instrument  with  the 
same  formahties  that  are  required  by  law  for  the  execu- 
tion of  a  will,  declaring  expressly  the  revocation  of  all  for- 
mer wills  or  codicils  by  him  made.  If  the  revocatory  will 
has  been  lost  or  destroyed  so  that  its  contents  cannot  be 
sufficiently  proven  to  admit  it  to  probate,  yet  it  may  be 
shown  that  it  revoked  the  former  will  and  defeat  its  pro- 
bate.^'^  As  the  republication  of  a  will  is  equivalent  to  the 
making  of  a  new  will,  such  republication  will  revoke  any 
will  intermediate  to  the  original  date  of  the  prior  will  and  of 
its  republication. 

§  50.  By  Burning;  Canceling,  Tearing  or  Obliterating. — 
To  effect  a  revocation  of  a  will  there  must  be  a  concurrence 
of  action  and  intention.  The  mere  act  of  burning  or  tearing 
or  canceling,  is  nothing,  unless  it  be  done  animo  revocandi 
— with  the  intent  and  for  the  purpose  of  revoking  the  in- 
strument.^^ Thus,  if  a  man  should  throw  ink  on  his  will 
instead  of  sand,  though  it  might  be  a  complete  defacing  of 
the  instrument,  it  would  be  no  revocation,  or,  if  a  man  hav- 
ing two  wills  of  different  dates,  should  direct  the  former 
to  be  destroyed,  and  by  mistake  the  person  directed  should 
cancel  the  latter,  such  an  act  would  be  no  revocation  of  the 
latter  will.  A  cancellation,  therefore,  through  accident  or 
mistake,  will  be  ineffectual  to  revoke  a  will.^* 

The  revocation  may  be  of  the  whole  will  or  of  a  part  only. 
If  the  testator  tear  off  his  signature  at  the  end  of  the  will, 
or  cut  it  out,  or  obliterate  it,  it  will  be  inferred  that  he  in- 
tended thereby  to  revoke  the  whole  will.  So  if  the  names 
of  the  attesting  witnesses  should  be  taken  away  by  the 
testator,  animo  revocandi,  it  would  be  a  good  revocation 
of  the  will.  It  is  not  necessary  that  the  instrument  itself 
should  be  actually  consumed  or  torn  to  pieces;  the  signa- 
tures being  essential  to  the  execution  of  the  instrument, 
their  destruction  or  obliteration  would  seem  to  be  sufficient 
to  revoke  it. 

If  the  testator  obliterate  only  a  particular  clause,  or  por- 
tion of  his  will,  it  operates  as  a  revocation  only  pro  tanto. 
So  if  part  of  one  sheet  of  a  will  consisting  of  several  sheets, 
be  torn  off  or  cut  through,  leaving  the  remainder  of  the  will 

12  Wallis  V.  Wallis,  114  Mass.  510. 

13  Banks  v.  Banks,  65  Mo.  432. 

14  Mann  v.  Balfour,  187  Mo.  290,  86  S.  W.  103 ;  West  v.  West,  144 
Mo.  119,  46  S.  W.  1.39. 


§  51  THE   REVOCATION   OF   WILLS  45 

in  its  original  state,  this  would  only  revoke  the  part  ac- 
tually cut  or  torn.^^  But  when  a  revocation  is  made  with 
a  view  to  an  immediate,  other  and  different  disposition,  the 
revocation  depends  on  the  efficiency  of  such  other  disposi- 
tion, so  where  the  testator  tore  a  page  out  of  his  will  in- 
tending to  substitute  another  dift'ering  from  the  one  torn 
out,  and  which  failed  to  become  a  part  of  the  will  because 
the  instrument  was  not  properly  re-executed,  it  was  held 
that  the  page  torn  out  remained  a  part  of  the  original  will/® 
The  presumption  of  the  law  is,  that  obliterations,  etc.,  made 
after  the  will  are  done  animo  revocandi,  but  this  presump- 
tion may  be  repelled  by  evidence  showing  that  the  animus 
did  not  exist. 

The  words  "burning,  tearing,  canceling  or  obliterating" 
are  used  in  the  Statute  of  Frauds  in  declaring  the  means 
whereby  a  will  may  be  revoked.  They  were  copied  into 
the  Missouri  statute.  The  later  English  Statute  of  Wills, 
the  1st  Victoria,  has,  however,  changed  the  language  to 
"burning,  tearing  or  othemnse  destroying,"  and  this  word- 
ing is  copied  in  the  statutes  of  some  American  States.  The 
latter  wording,  by  omitting  the  word  "canceling"  and  in- 
serting "or  othcrzvise  destroying,"  seems  to  preclude  the 
method  of  cancelmg  at  least  so  far  as  a  partial  revocation, 
or  the  cancellation  of  part  only,  of  the  will  is  concerned. 

§  51.  Same — The  Act  and  Intention. — As  the  destruc- 
tion or  obliteration  of  a  will,  without  the  intention,  will  not 
revoke  it,  neither  will  the  intention  without  the  act  be  suf- 
ficient to  do  so.  But  if  the  intention  to  revoke  the  will  is 
apparent,  the  act  of  obliteration  will  carry  the  intention 
into  effect,  although  the  instrument  may  not  be  literally  de- 
stroyed, provided  the  testator  completed  all  he  intended  to 
do.  But  if  the  intention  is  changed  before  the  destruction 
or  cancellation  is  completed,  the  partial  destruction  will  be 
disregarded  and  the  instrument  held  still  in  force.  Any 
act  of  spoliation  or  destruction,  done  upon  the  instrument 
by  the  testator  with  intent  thereby  to  destroy  its  legal  ex- 
istence as  a  testament,  amounts  to  what  the  law  terms  can- 
cellation. The  act  may  be  very  slight,  such  as  partially 
tearing,  or  crumpling  it  up  and  throwing  it  on  the  tire, 
though  it  were  privately  rescued  and  saved  by  another  per- 

16  Varnon  v.  Varnou,  07  Mo.  App.  534. 

16  Varnou  v.  Varnon,  G7  Mo.  App.  534;  Banks  v.  Banks,  65  Mo. 
432;    Bigelow  v.  Gillott,  123  Mass.  103,  25  Am.  Rep.  32. 


46  THE   EEVOCATION   OF   WILLS  §  52 

son.  A  partial  burning  of  the  paper,  though  ever  so  slight, 
is  a  sufificient  revocation,  or  drawing  lines  across  it.^^  But 
the  act  must  be  done  and  not  merely  intended.  Neither 
the  intention  of  the  testator  to  destroy  his  will,  nor  his 
belief  that  it  has  been  done,  will  defeat  the  instrument, 
if  in  fact  it  be  preserved.  Thus,  where  the  testator  be- 
ing blind,  directed  another  person  to  destroy  his  will,  and 
being  told  that  it  was  destroyed,  believed  it,  whereas  in 
fact  it  was  deceitfully  preserved  entire  by  that  person, 
no  act  having  been  done  towards  destroying  it,  this  was 
held  no  revocation. ^^  The  intention  to  revoke  a  will  is 
utterly  inoperative  unless  there  be  some  act  done  in  pur- 
suance of  that  intention,  and  such  act  must  be  one  of  revoca- 
tion within  the  requirements  of  the  statute.^'' 

§  52.  Same — Sound  Mind. — It  requires  the  same  ca- 
pacity to  revoke  a  will,  as  to  make  one.-**  So  where  a  com- 
petent testator  makes  a  will,  which  is  afterward  destroyed 
by  his  consent,  or  even  by  his  own  hand,  it  will  not  amount 
to  a  revocation  in  law,  unless  he  had  at  the  time  sufficient 
capacity  to  understand  the  nature  and  efifect  of  the  act,  and 
performed  it,  or  directed  it  to  be  performed,  freely  and  vol- 
untarily with  the  intent  to  efifect  a  revocation. ^^  If  a  will 
has  been  improperly  destroyed,  it  may  be  established  by 
proof  of  its  contents. ^- 

§  53.  Same — Presumption. — If  a  testator  execute  a  will 
and  it  is  not  found  at  the  time  of  his  decease,  the  presump- 
tion is  that  he  destroyed  it  animo  revocandi,-^  and  es- 
pecially, if  the  will  remained  in  his  possession  all  the  time. 
This,  however,  is  only  a  presumption  of  fact,  and  may  be 
repelled  by  contrary  proof,  and  the  will  established.  The 
same  doctrine  applies  to  the  case  of  a  mutilation  or  defacing 
of  a  will,  which  upon  the  death  of  the  testator  is  found 
among  his  repositories.  Such  acts  are  presumed  to  have 
been  done  by  the  testator  himself,  and  to  have  been  done 

17  Spoonemore  v.  Cables,  66  Mo.  579. 

IS  Buy d  V.  Cook,  3  Leigh  (Va.)  32;  Giles'  Heirs  v.  Giles'  Ex'rs, 
1  N.  C.  377. 

19  Jaruian  on  Wills,  c.  7,  §  2. 

20  Schaff  V.  Peters,  111  Mo.  App.  447,  90  S.  W.  1037. 

21  SchafE  V.  Peters,  111  Mo.  App.  447,  90  S.  W.  1037. 

22  Dickey  v.  Malachi,  6  Mo.  177,  34  Am.  Dec.  130;  Varnon  v.  Var- 
non,  67  Mo.  App.  534;    Mann  v.  Balfour,  187  Mo.  290,  86  S.  W.  103. 

2  3  Mann  v.  Balfour,  187  Mo.  290,  86  S.  W.  103. 


§  56  THE   REVOCATION   OF   WILLS  47 

animo  revocandi.-*  When  questions  arise  upon  revoca- 
tions, such  as  burning-,  tearing,  canceling,  etc.,  they  must  be 
proved  as  other  matters  of  fact. 

§  54.  Same — To  Effect  a  Revocation  of  the  instrument, 
the  burning,  tearing,  etc.,  must  be  done  by  the  testator  him- 
self, or  i)i  his  presence  and  by  his  consent  and  direction; 
therefore,  if  he  should  not  be  present  at  the  burning,  or  it 
should  be  done  without  his  direction  and  consent,  the  will 
is  not  thereby  revoked.  In  the  revocation  of  a  will  the 
statute  must  be  substantially,  if  not  strictly  complied 
with.-" 

§  55.  By  Marriage. — The  presumption  that  a  man  has 
changed  his  testamentary  disposition  of  property,  does  not 
arise  by  lapse  of  time,  nor  from  subsequent  insanity  or  im- 
becility of  the  testator,  nor  by  the  accumulation  of  wealth, 
nor  by  the  prejudice  it  may  occasion  to^  parties  to  whom  the 
estate  would  go  in  the  case  of  intestacy.  But  marriage  of 
the  testator  and  birth  of  a  child,  when  both  events  occur 
subsequent  to  the  making  of  the  will,  have  always  been  re- 
garded as  an  implied,  or  presumed  revocation  of  the  will, 
upon  the  ground  of  supposed  change  of  intention  with  the 
change  of  condition  of  the  testator,  by  which  he  assumed 
new  moral  obligations.^*'  Neither  marriage  alone,  nor  the 
birth  of  a  child  alone  has  this  effect;  both  these  circum- 
stances must  concur.-^  But  the  marriage  of  a  single  wo- 
man operated  as  a  revocation  of  her  will,  because  the  mat- 
rimonial relation  took  away  her  power  to  make  a  will,  and 
thus  the  nature  of  the  instrument  would  be  destroyed  by 
its  ceasing  to  be  ambulatory.  This  reason  would  not  apply 
in  jMissouri,  for  a  married  woman  may  make  a  will  here. 
But  it  is  expressly  enacted  by  the  statute  in  Missouri  that 
a  will,  executed  by  an  unmarried  woman,  shall  be  deemed 
revoked  by  her  subsequent  marriage.-** 

§  56.  Marriage  and  Issue. — This  whole  subject  is  now 
generally  regulated  everywhere  by  statute  and  placed  be- 
yond the  reach   of   astute   discrimination   and    speculation. 

24  Sohouler  on  Wills.  §  401;  r.orlaud  on  Wills,  §  22;  Odeuwaelder 
V.  Schorr,  8  Mo.  App.  458. 

2  5  West  V.  West,  144  .AIo.  119.  46  S.  W.  i:!9;  Banks  v.  Banks,  65 
Mo.  4:52 ;    Mann  v.  Balfour,  1S7  Mo.  290,  SO  S.  W.  103. 

2G  Brush  V.  Wilkins,  4  Johns.  Ch.  (N.  Y.)  506;  Havens  v.  Van  Den 
Burgh,  1  Denio  (N.  Y.)  27. 

2  7  Rev.  St.  1909,  §  539.  2  s  Rev.  St.  1900,  §  540. 


48  THE   REVOCATION   OF   WILLS  §  56 

Thus,  it  is  enacted  in  Missouri,  "that  if,  after  making  a  will, 
disposing  of  the  whole  estate  of  the  testator,  such  testator 
shall  marry  and  die,  leaving  issue  by  such  marriage  living 
at  the  time  of  his  death,  or  shall  leave  issue  of  such  mar- 
riage, born  to  him  after  his  death,  such  will  shall  be  deemed 
revoked,  unless  provision  shall  have  been  made  for  such 
issue  by  some  settlement,  or  unless  such  issue  be  provided 
for  in  the  will ;  and  no  evidence  shall  be  received  to  rebut 
the  presumption  of  such  revocation.-'' 

It  will  be  seen  that  marriage  alone  is  not,  as  to  the  wife, 
a  revocation  of  the  will,  although  the  whole  estate  may  be 
disposed  of,  and  no  provision  be  made  for  her;  because  the 
widow  has  always  under  the  law  a  right  of  dower  which 
she  cannot  be  deprived  of  by  the  will,  and  which  it  is  proper 
to  suppose  the  testator  was  aware  of  in  making  his  will.  But 
marriage  and  birth  of  a  child  subsequent  to  the  execution 
of  the  will,  the  whole  estate  being  disposed  of,  and  there 
being  no  settlement  or  provision  made  for  such  child,  is  an 
absolute  revocation  of  the  whole  will,  under  the  statute. 
If  the  will  be  made  after  the  marriage,  the  subsequent  birth 
of  a  child  will  not  revoke  the  will  in  toto,  but  only  pro 
tanto,  and  not  to  that  extent  if  such  child  be  expressly  pro- 
vided for  or  even  mentioned  in  the  will.^*'  For,  as  we  have 
stated  elsewhere,  there  is  no  doubt  that  the  testator  may, 
if  he  please,  devise  all  his  estate  to  strangers,  and  disinherit 
his  children. ^^ 

§  57.  Same — Implied  Revocation  by  Alienation  of  the 
Estate. — There  is  an  implied  revocation  in  the  nature  of 
ademption,  which  arises  either  when  the  subject  of  the  be- 
quest is  altered  or  parted  with  by  the  testator,  or  when  the 
purpose  for  which  it  was  beqvieathed  has  been  provided  for 
by  him  by  other  means.  It  must  be  remembered  that  a  will 
speaks  of  the  testator's  affairs  at  the  time  of  his  death,  if 
there  be  nothing  in  the  will  to  give  it  a  different  effect; 
hence  it  cannot  operate  upon  any  property  in  which  the 
testator  has  no  interest  when  it  takes  effect.  Therefore, 
the  general  rule  is  that  if,  after  making  a  will,  the  testator 
executes  any  legal  conveyance  of  the  devised  property,  the 
will  is  revoked.  But  in  order  to  defeat  altogether  a  tes- 
tamentary disposition   and  produce   intestacy,  there   must 

2  9  Rev.  St.  1909,  §  539. 

3  0  Rev.  St.  1909,  §  544;  Story  v.  Story,  188  Mo.  110,  86  S.  W.  225. 
SI  Ante,  §  30. 


§  58  THE   REVOCATION   OF   WILLS 


49 


be  a  sul)sequent  conveyance  of  the  whole  estate.^^  If  the 
conveyance  be  of  a  part  only  it  will  amount  to  a  revocation 
pro  tanto;  to  the  extent  of  the  conveyance  there  is  a  rev- 
ocation and  nothing  more.^^  *  So  if  the  alteration  in  the 
testator's  circumstances  is  such  as  to  render  it  impossible 
to  execute  any  part  of  his  will,  it  will  be  considered  as  en- 
tirely revoked;  but  if  it  can  be  partly  executed,  the  revoca- 
tion is  as  to  the  part  which  cannot  be  carried  into  effect. 
If  after  the  execution  of  a  will,  a  testator  purchase  land 
which  would  be  included  in  the  general  description  of  the 
land  devised  by  the  will,  it  is  no  revocation  of  the  will,  ei- 
ther in  whole  or  in  part.^* 

Nor  is  a  gift  of  real  estate  to  a  son  by  his  father  in  his 
lifetime,  and  after  the  date  of  his  will,  an  ademption  pro 
tanto  of  a  pecuniary  legacy  in  the  the  same  will,  the  gift 
and  bequest  not  being  ejusdem  generis.''^  Nor  is  a  convey- 
ance of  other  land  made  subsequently  to  a  devise  of  lands  a 
revocation  or  satisfaction  of  a  devise  of  the  lands  to  the 
grantee.  If  it  be  a  portion  of  the  same  land,  it  is  a  revoca- 
tion pro  tanto.^«  The  doctrine  of  ademption  is  regarded 
by  the  courts  as  a  satisfaction  of  a  bequest  rather  than  as 
a  revocation  of  the  will.^'' 

§  58.  Same. — At  common  law  the  doctrine  of  implied 
revocation  arose,  not  only  in  cases  where  the  testator  ac- 
tually sold  the  property  devised,  but  the  least  alteration 
of  his  interest  in  it  was  a  revocation,  on  the  ground  of  its 

3  2Cozzens  v.  Jamisou,  12  Mo.  App.  452;  Marshall  v.  Hartzfelt, 
98  Mo.  App.  178,  71  S.  W.  1061. 

3  3  Cozzens  v.  Jamison,  12  INIo.  App.  452;  Marshall  v.  Hartzfelt. 
98  M«.  App.  178,  71  S.  W.  1061. 

34  Blandin  v.  Blandiu,  9  Vt.  210;  Hawes  v.  Humphrey,  9  Pick. 
(Mass.)  850.  20  Am.  Dec.  481 ;  Brush  v.  Brush,  11  Ohio,  2S7 ;  Barker 
V.  Mechanic  Fire  Ins.  Co.,  3  Wend.  (N.  Y.)  96,  20  Am.  Dec.  664. 

3  5  Dugan  V.  Hollins.  4  Md.  Ch.  1.S9. 

36  Fisher  v.  Keithley.  142  Mo.  244,  43  S.  W.  650,  64  Am.  St.  Rep. 
560;  Marshall  v.  Hartzfelt,  98  Mo.  App.  178.  71  S.  W.  1061;  Coz- 
zens V.  Jamison.  12  Mo.  App.  452. 

3  7  Fisher  v.  Keithley,  142  Mo.  244.  43  S.  W.  650,  64  Am.  St.  Rep. 
560. 

*To  deprive  one  of  the  land  devised  to  him  on  the  ground  that 
the  testator,  after  making  the  will,  conveyed  the  land  to  another 
person  by  a  deed  which  was  lost  and  not  recorded,  the  evidence 
should  be  clear  in  support  of  the  deed.  The  sworn  statement  of 
the  person  claiming  as  grantee,  unsupported  by  other  evidence,  is 
not  sufficient.  Napton  v.  Leaton,  71  Mo.  358. 
Kel.INIo.P.G.— 4 


50  THE   REVOCATION   OF   WILLS  §  58 

being  evidence  of  an  alteration  of  the  testator's  mind.  The 
law  required  that  the  interest  the  testator  had  in  the  prop- 
erty at  the  time  he  made  the  will  should  continue  to  be 
the  same  and  remain  unaltered  till  his  death.  But  a  mort- 
gage or  charge  upon  the  estate  was  made  an  exception  to 
the  general  rule,  and  was  only  a  revocation,  in  equity  pro 
tanto,  or  quoad  the  special  purpose. 

The  statute  of  Missouri  has  changed  the  rule  in  part  as 
to  such  cases.  It  provides  that  a  bond,  a  covenant,  or 
agreement  made  for  a  valuable  consideration  by  a  testator, 
to  convey  any  property  devised  or  bequeathed  in  any  last 
will  previously  made,  shall  not  be  deemed  a  revocation  of 
such  previous  devise  or  bequest,  either  in  law  or  equity; 
but  such  property  shall  pass  by  the  devise  or  bequest,  sub- 
ject to  the  same  remedies  on  such  bond,  covenant  or  agree- 
ment, for  specific  performance  or  otherwise,  against  the 
devises  or  legatees,  as  might  be  had  by  law  against  the 
heirs  of  the  testator,  or  his  next  of  kin,  if  the  same  had 
descended  to  them.^**  It  is  also  provided,  that  a  charge 
or  incumbrance  upon  any  real  or  personal  estate,  for  the 
purpose  of  securing  the  payment  of  money,  or  the  per- 
formance of  any  covenant  or  agreement,  shall  not  be 
deemed  a  revocation  of  any  will  previously  executed  relat- 
ing to  the  same  estate  but  the  devises  and  legacies  therein 
contained  shall  pass  and  take  elTect,  subject  to  such  charge 
or  incumbrance."^  A  conveyance  in  trust,  for  the  payment 
of  the  debts  of  the  grantor,  and  then  to  revert  to  him,  is 
not  such  a  disposition  of  the  estate  as  to  revoke  a  previous 
will.*"  But  if  the  testator  should  sell  and  convey  the  real 
estate  devised,  and  take  back  a  bond  and  mortgage  for  the 
whole  or  a  part  of  the  purchase  money,  the  effect  of  the 
sale  would  be  a  revocation  of  the  will  as  to  the  real  estate 
so  sold  and  conveyed.'*^  It  has  been  held  in  such  case,  how- 
ever, that  if  the  testator  in  his  life  time,  take  back  the  prop- 
erty by  a  conveyance,  and  is  seized  of  it  at  his  death,  the 
devise  will  be  effectual.*^ 

3  8  Rev.  St.  1000,  §  541. 

3  9  Rev.  St.  1000,  §  542;  4  Kent.  Com.  652;  Sauer  v.  Griffiu,  67 
Mo.  654 ;    Whittelsey  v.  Brohammer,  31  Mo.  98. 

40  joues  V.  Hartley,  2  Wliart.   (Pa.)  103. 

41  Adams  v.  Winne.  7  Paige  (N.  Y.)  101;  Brown  v.  Brown,  16 
Barb.  (N.  Y.)  569;    Barstow  v.  Goodwin,  2  Bradf.   Sur.  (N.  Y.)  413. 

4  2  Van  Rensselaer  v.  Witbeck,  7  Barb.  (N.  Y.)  142;  Arthur  v.  Ar- 
thur, 10  Barb.  (X.  Y.)  9. 


§  60  THE   EEPUBLICATION    OF   WILLS  SI 

CHAPTER  VI 

OF   THE    REPUBLICATION    OF    WILLS 

§  51).     Republication  of  a  will. 
GO.     Same — By  a  codicil. 
Gl.     Eftect  of  puhlication. 

Having  shown  how  a  will  may  be  made,  and  also  how  it 
may  be  revoked,  it  wnll  now  be  in  order  to  point  out  the 
way  in  which  a  will  may  be  republished,  and  the  effect  of 
such  republication. 

§  59.  Republication  of  a  Will. — When  a  will  has  been 
successfully  revoked,  its  efiicacy  as  a  testamentary  instru- 
ment is  destroyed,  and  it  can  only  be  restored  by  republi- 
cation. This  may  be  done  in  three  ways,  viz:  (1)  By  ex- 
press republication,  as  where  the  testator  repeats  the  cere- 
monies and  procures  the  proper  attestation  of  witnesses, 
as  in  the  case  of  the  execution  of  a  will.^  (2)  By  a  codicil, 
duly  executed  and  attested  in  the  manner  required  for  the 
execution  and  attestation  of  a  will.  (3)  A  will  which  has 
been  revoked  or  superseded  by  a  subsequent  will,  may  be 
revived  and  restored  to  force,  by  the  terms  of  the  instru- 
ment revoking  the  subsequent  will,  showing  an  intention 
to  revive  and  give  effect  to  the  first  will.-  But  such  an  in- 
strument must  be  executed  and  attested  in  the  manner  re- 
quired for  the  execution  of  a  will. 

It  would  seem  unnecessary  to  state  that  a  will  once  re- 
voked cannot  be  republished  by  parol.  Nor  can  a  will  ex- 
ecuted according  to  law,  but  not  expressly  revoked,  be  re- 
published by  parol.  It  can  only  be  done  by  repeating  the 
formalities  by  which  it  was  first  made.^ 

§  60.  Same — A  Codicil  duly  executed  amounts  to  a  re- 
publication of  the  will  to  which  it  refers,  whether  it  is  an- 
nexed to  the  will  or  not,  or  is,  or  is  not,  confirmatory  of  it; 
for  every  codicil  is,  in  construction  of  law,  part  of  a  will, 
whether  it  be  so  stated  in  such  codicil  or  not ;  and  as  such, 

1  Jackson  v.  I'otter.  0  Johns.  (N.  Y.)  312 ;  Jackson  v.  Ilolloway,  7 
Johns.  (N.  Y.)  3D4;    Jarman  on  Wills,  202. 

2  Rev.  St.  1009,  §  T)!;;. 

3  Cozzens  v.  Jamison.  12  Mo.  App.  452 ;  Banks  v.  Banks,  65  Mo. 
432;    Beaumont  v.  Keim,  50  Mo.  28. 


52  THE   REPUBLICATION   OF   WILLS  §  60 

furnishes  conclusive  evidence  of  the  testator's  considering 
his  will  as  existing.*  Yet  if  there  are  several  wills  of  dif- 
ferent dates,  and  there  be  a  question  as  to  which  one  the 
codicil  relates,  the  circumstance  of  annexation  is  strong  to 
show  that  it  was  intended  as  a  codicil  to  the  will  to  which 
it  is  annexed,  and  to  no  other.  A  will  or  codicil  containing 
a  devise  of  real  estate,  but  not  duly  attested,  may  be  repub- 
lished and  made  operative  by  a  subsequent  codicil,  having 
the  requisite  attestation,  though  it  be  in  no  way  annexed 
to  the  will  or  prior  codicil,  but  it  should  distinctly  refer  to 
it.^  So  a  codicil  may  republish  a  will,  so  as  to  give  effect 
to  a  devise  otherwise  void  on  account  of  the  devisee  being 
a  witness  to  the  original  will.*'  A  will  executed  by  a  party 
under  undue  influence,  may  be  republished  and  confirmed 
by  a  codicil  executed  afterward,  and  when  the  testator  is 
free  from  such  influence. '^ 

A  codicil  referring  inaccurately  to  a  will  may  republish 
it;  and  it  will  be  taken  to  refer  to  the  last  in  date  of  sever- 
al wills,  if  no  date  be  mentioned;  but  if  the  date  of  a  par- 
ticular will  be  expressed,  it  will  refer  to  that  one  f  and  if  a 
last  will  be  referred  to  and  there  is  nothing  in  the  con- 
tents of  the  codicil  to  point  to  any  particular  will,  it  must 
be  construed  to  refer  to  the  will  in  legal  existence  as  the 
last  will  and  not  to  a  revoked  will.^  A  will  revoked  by  the 
marriage  of  the  testator  may  be  revived  by  a  codicil  made 
after  such  marriage  which  refers  to  such  will.  And  a  will 
revoked  by  the  marriage  of  a  feme  sole  may  be  republished 
by  a  codicil  or  otherwise  after  her  marriage,  for  a  mar- 
ried woman  may  make  a  will.  If  it  should  appear  on  the 
face  of  the  codicil  that  it  was  not  the  intention  of  the  tes- 
tator to  republish  a  former  will,  the  ordinary  presumption 
derived  from  the  existence  of  the  codicil  in  that  regard  will 
be  counteracted.^*' 

4  Williams,  Ex'rs,  184 ;  Movers  v.  White,  6  Johns.  Ch.  (N.  T.) 
375;    Van  Cortlandt  v.  Kipp,  1  Hill  (N.  Y.)  590. 

5  Haven  v.  Foster,  14  Pick.  (Mass.)  543 ;  Miles  v.  Boyden,  3  Pick. 
(Mass.)  216;    Barnes  v.  Crowe,  1  Vesey,  Jr.  486-498. 

6  Movers  v.  White,  6  Johns.  Ch.  (N.  Y.)  375 ;  Brimmer  v.  Sohier, 
1  Cush.  (Mass.)  118. 

7  Gist  V.  Rof,'ers,  1  Rice  (S.  C.)  80. 

8  Crosbie  v.  Macdoual,  4  Vesey,  615 ;  Lord  Walpole  v.  Lord  Or- 
ford,  3  Vesey,  402. 

9  Hale  v.  Tokelove,  2  Robert.  Ecc.  326. 

10  Strathmore  v.  Bowes.  7  T.  R.  482 ;  Id.,  2  Bos.  &  Pul.  500;  Marks 
v.  Marks,  Comp.  132 ;    Price's  Adm'r  v.  Boswell,  3  B.  Mon.  (Ky.)  24. 


§  61  THE   REPUBLICATION   OF   WILLS  53 

§  61.  Effect  of  Republication. — The  republication  of  a 
will  is  equivalent  to  making-  the  will  anew;  that  is,  the  will 
republished  is  a  new  will.  And  upon  the  principle  that  of 
any  number  of  wills  the  last  and  newest  is  the  one  in  force, 
it  revokes  any  will  of  a  date  prior  to  that  of  the  republica- 
tion.-^^ Addini^'  a  codicil  to  a  will  is  a  republication,  and  the 
codicil  brings  the  will  to  it,  and  makes  it  a  will  from  the 
date  of  the  codicil.-^-  Indeed,  republishing  a  will  is  simply 
executing  it,  and  no  matter  how  long  it  may  have  been  writ- 
ten or  what  its  original  date  may  be,  the  republication  brings 
it  down  and  gives  it  life  and  force  as  of  that  date.  A  repub- 
lished will  extends,  in  its  operation,  to  the  estate  of  the  tes- 
tator as  it  exists  at  that  time,  and  embraces  subjects  which 
have  arisen  between  its  original  date  and  republication.-^^ 
Therefore,  lands  bought  after  a  will  and  before  the  codicil 
may  pass  by  the  will.^*  So,  lands  purchased  after  making 
a  will,  may  pass  by  it  in  case  of  republication.^''  A  will  is 
construed  to  speak  and  take  effect  as  if  it  had  been  executed 
immediately  before  the  death  of  the  testator,  unless  a  con- 
trary intention  shall  appear  by  the  will ;  therefore,  after  ac- 
quired estate  passes  under  a  general  devise,  so  that  the  ef- 
fect of  a  republication  being  the  same  as  a  new  will,  its  con- 
sideration here  is  not  of  much  importance. 

11  Walpole  V.  Cholmondeley,  7  T.  R.  138;    Walpole  v.   Orford,  3 
Vesey,  402. 

12  Murray  v.  Oliver,  41  N.  C.  (6  Ired.  Eq.)  55. 

13  Movers  v.  White,  6  Jobns.  Ch.  (N.  Y.)  375. 

14  Miles   V.   Boy  den,   3   Pick.   (Mass.)   213;    Haven   v.    Foster,    14 
Pick.  (Mass.)  543. 

15  Luce  v.  Dimock,  1  Root  (Conn.)  82. 


54  THE   PROBATE   OF   WILLS  §  62 

CHAPTER  VII 

OF  THE   PROBATE   OF   WILLS 

§  62.  Production  of  will  for  probate. 

63.  Probated  in  what  county — By  court  or  clerk,  etc. 

64.  Same — Death  of  testator  to  be  shown. 

65.  Same— Will,  how  proved. 

66.  Same — Form  of  will. 

67.  Commission  to  take  proof — When  and  form. 

68.  Return  to  commission  and  examination. 

69.  Witness  dead  or  absent,  etc. 

70.  Proof  to  be  reduced  to  writing. 

71.  Hand-writing — How  proved. 

72.  Will  admitted  against  the  evidence  of  attesting  witnesses. 

73.  Proof  of  lost  will. 

74.  Soundness  of  testator's  mind  to  be  proven, 

75.  Order  of  probate  and  certificate. 

76.  Codicil  must  be  proven,  etc. 

77.  Proof  of  nuncupative  will — Citation,  etc. 

78.  Judgment  of  probate — Effect — Forms. 

§  62.  Probate — Production  of  Will. — A  will  takes  ef- 
fect on  the  death  of  the  testator,  but  it  must  be  admitted 
to  probate — i.  e.,  proved  before  the  proper  tribunal  to  be 
the  last  will  and  testament  of  the  deceased — before  its  pro- 
visions can  be  carried  into  effect.^  At  common  law  the 
proper  person  to  cause  the  will  to  be  proved  was  the  ex- 
ecutor named  in  it,  and  no  other  person  had  a  right  to  do 
so  until  he  renounced  the  executorship ;  but  under  our  law, 
any  person  interested  in  the  estate  may  cause  it  to  be 
proved,  and  any  person  having  possession  of  the  will  may 
be  compelled  by  the  proper  court  to  produce  it  for  probate,- 

§  63.  Same — In  what  County. — The  law  does  not  point 
out  any  particular  manner  in  which  a  will  must  be  proved, 
but  it  designates  the  place  and  court  where  it  must  be  done. 
Of  course,  the  court  having  probate  jurisdiction  is  the 
proper  tribunal  to  hear  the  proof  and  pass,  in  the  first  in- 
stance, upon  the  validity  of  the  will.^ 

1  Rev.  St.  1909,  §  547 ;  Cash  v.  Lust,  142  Mo.  630,  44  S.  W.  724, 
64  Am.  St.  Rep.  576;  Snuffer  v.  Howerton,  124  Mo.  637,  28  S.  W. 
166 ;    Smith  v.  Estes,  72  ]\Io.  310. 

2  Rev.  St.  1909,  §  584;   1  Williams,  Ex'rs,  287. 

3  Stowe  v.  Stowe,  140  Mo.  594.  41  S.  W.  951 ;  Banks  v.  Banks,  6a 
Mo.  432 ;    Clark  v.  Carter,  200  Mo.  515,  98  S.  W.  594. 


§  64:  THE    PROBATE    OF   WILLS  55 

The  probate  court,  or  clerk  in  vacation,  subject  to  con- 
firmation or  rejection  by  the  court,  must  take  proof  of  last 
wills.*  The  clerk  may  take  the  proof,  but  unless  the  will 
is  established  or  probated  by  the  order  or  judgment  of  the 
court  it  is  not  legally  established,^  and  is  not  admissible  in 
evidence  as  a  will.'^  A  devisee  takes  no  title  unless  the  will 
is  probated.'^  If  the  testator  had  a  mansion  house  or  known 
place  of  abode  in  any  county  in  Missouri,  his  will  must  be 
there  proved ;  if  he  had  no  place  of  residence  and  lands  are 
devised,  it  must  be  proved  in  the  county  where  any  part  of 
the  lands  lie ;  and  if  he  had  no  place  of  residence,  and  no 
lands  are  devised,  the  will  must  be  proved  in  the  county  in 
which  the  testator  died ;  or  if  he  died  out  of  the  state,  it 
may  be  proved  in  any  county.** 

§  64.  Same — Death  of  Testator. — In  order  to  probate 
a  will  the  death  of  the  testator  must  be  shown,  not  posi- 
tively in  all  cases,  but  to  a  reasonable  degree  of  certainty. 
The  fact  may  be  proved  by  presumptive,  as  well  as  by  di- 
rect, evidence.  Where  the  executor  or  friends  of  the  tes- 
tator appear  before  the  court  and  announce  his  death,  this 
is  taken  as  prima  facie  evidence  of  the  fact.  So,  if  a  per- 
son goes  abroad,  or  is  away  from  the  state  in  which  he 
usually  lived  for  the  period  of  seven,  years,  and  has  not  been 
heard  of,  and  no  account  can  be  given  of  him,  the  presump- 
tion arises  that  he  is  dead.'^  As  a  rule,  the  burden  of  prov- 
ing the  death  of  the  testator,  lies  on  the  party  who  asserts 
it,  and  the  onus  or  burden,  is  upon  the  proponents  of  the 
will  to  prove  its  proper  execution  and  attestation,  and  that 
the  testator  was  of  proper  age  and  of  sound  mind.^''     But 

4  Rev.  St.  1900.  §  547 ;  Banks  v.  Banks.  G5  Mo.  432 ;  Cash  v.  Lust. 
142  Mo.  630,  44  S.  AY.  724,  64  Am.   St.  Rep.  576. 

5  Smith  V.  Estes,  72  Mo.  310 ;  Snuffer  v.  Howerton.  124  Mo.  637, 
28  S.  W.  166 ;    Stowe  v.  Stowe,  140  Mo.  504.  41  S.  W.  051. 

6  Barnard  v.  Bateman,  76  Mo.  414 ;  Rothwell  v.  Jamison,  147  Mo. 
601.  40  S.  W.  503. 

7  Snuffer  v.  Howerton,  124  Mo.  637,  2S  S.  W.  166. 

8  Rev.  St.  1000.  §  54S. 

9  Carpenter  v.  Supreme  Council.  Let;ion  of  Honor.  70  Mo.  App. 
507 ;  Sprinsnieyer  v.  Sovereign  Camp.  Woodmen  of  the  World.  144 
Mo.  App.  483,  120  S.  W.  273. 

10  Maddox  v.  Maddox.  114  Mo.  35.  21  S.  W.  400,  35  Am.  St.  Rep. 
734 ;  Carl  v.  Gabel.  120  Mo.  28.3,  25  S.  W.  214 ;  Sehr  v.  lindemann. 
153  Mo.  276,  54  S.  W.  537;  Ilogan  v.  Hinchey,  105  Mo.  527.  04  S. 
W.  522;  Mowry  v.  Norman.  204  Mo.  173,  103  S.  W.  15;  Cowau  v. 
Shaver,  107  Mo.'  203.  95  S.  W.  200.' 


56  THE    PROBATE    OF   WILLS  §  65 

in  the  case  of  a  contest  in  the  circuit  court,  after  the  formal 
proofs  have  been  made,  it  devolves  upon  contestants  to 
sustain  the  objections  to  the  validity  of  the  will.^^ 

§  65.  Same — How  Proved. — There  are  at  common  law 
two  ways  of  proving  a  will ;  in  common  form  and  solemn 
form  or  per  testes.  A  will  is  proved  in  common  form  when 
the  executor  presents  it  before  the  court,  and  in  the  absence 
and  without  citing  the  parties  interested,  produces  the  evi- 
dence to  prove  its  execution.  To  prove  a  will  in  solemn 
form  or  per  testes,  the  persons  interested  (the  widow  and 
next  of  kin,)  must  be  cited  to  be  present  at  the  "probation 
and  approbation.''  ^^  A  will  in  writing  is  usually  probated 
in  Missouri  in  common  form.  It  is  presented  to  the  proper 
court,  and  the  attesting  witnesses  are  produced,  whose  tes- 
timony in  support  of  the  execution  of  the  will  is  reduced 
to  writing,  and  upon  the  testimony  thus  given  the  officer 
or  court  decides  as  to  the  validity  of  the  will.  The  widow 
or  next  of  kin  may,  or  may  not,  be  present,  they  are  not 
cited  or  notified  to  witness  the  probate  of  the  will.  But  a 
nuncupative  will  must  be  proved  per  testes.  The  widow 
or  next  of  kin  of  the  deceased,  must  be  notified  by  citation, 
accompanied  with  a  copy  of  the  will,  that  they  may  contest 
the  probate  if  they  think  proper. ^^  The  term  next  of  kin, 
in  the  statute,  is  understood  to  embrace  only  that  class  of 
persons  to  whom  administration  of  the  estate  of  the  de- 
ceased would  be  committed  in  case  of  intestacy.^*  A  will 
proved  per  testes,  was  conclusive  upon  all  the  next  of  kin, 
who  were  cited  to  "see  proceedings."  ^^  The  provision  in 
the  Missouri  statutes  that  any  person  interested  in  the  pro- 
bate of  any  will  may  appear  within  two  years  after  the  pro- 
bate and  by  petition  to  the  circuit  court  contest  the  validity 
of  the  will  deprives  the  proceedings  in  the  probate  court  of 
conclusive  force  for  that  period  of  time  regardless  of 
whether  or  not  those  interested  were  present  at  or  notified 
of  the  probate. ^^ 

11  Campbell  v.  Carlisle,  162  Mo.  6.34,  6.3  S.  W.  701;  Schierbaum  v. 
Schemme,  157  Mo.  1,  57  S.  W.  526,  SO  Am.  St.  Rep.  604 ;  Southworth 
V.  Southworth,  17.3  Mo.  59,  73  S.  W.  129. 

12  1  Williams,  Ex"rs,  291,  298. 

13  Rev.  St.  1909,  §  562. 

14  1  Williams,  ILx'rs,  298. 
IB  1  Williams,  Ex'rs,  301. 

16  Rev.  St.  1909,  §  555.     See  post,  §  84. 


§  07  THE   PROBATE    OF   WILLS  57 

§  66.  Same. — When  a  will  is  exhibited  to  be  proven,  the 
court  or  clerk  may  immediately  receive  the  proof  and  grant 
a  certificate  of  probate;  or,  if  the  will  be  rejected,  grant  a 
certificate  of  rejection.  The  form  of  taking  the  testimony 
of  the  attesting  witnesses  in  proof  of  a  will  is  usually  as 
follows: 

Proof  of  Will 
State  of  Missouri,  \ 
County.         j 

In  the  matter  of  proving  the  last  will  and  testa-  \  Trobate  Court 
luent  of  late  of county,  deceased.    \  of county. 

On  this day  of ,  19—,  before  me,  of  the  probate 

court,  within  and  for  said  county,  personally  came and , 

who  being  by  me  duly  sworn,  on  their  oaths  say,  that  they  were 
present  and  saw  R.  R.  sign  the  foregoing  instrument,  purporting  to 
be  his  last  will  and  testament,  and  heard  him  publish  and  declare 
the  same  to  be  his  last  will  and  testament,  and  that,  at  the  time  of 
signing  and  publishing  the  same,  the  said  R.  R.  was  of  sound  and 
disposing  mind,  and  that  these  deponents  (and  H.  H.,  the  other  at- 
testing witness,)  subscribed  their  names  thereto  as  witnesses  to  the 
same,  in  the  presence  and  at  the  request  of  the  testator,  and  in  the 
presence  of  each  other.  


Subscribed  and  sworn  to,  etc. 

If  all  the  witnesses  do  not  appear  and  testify  at  the  same 
time,  or  to  the  same  facts,  their  testimony  may  be  taken 
separately.  The  witnesses  may  be  cross-examined  touching 
the  proof  of  the  will,  in  which  case,  the  testimony  of  each 
witness  should  be  taken  in  the  form  of  a  deposition. 

§  67.  Commission  to  take  Proof. — If  any  witness  is  pre- 
vented from  attending  by  sickness,  or  resides  out  of  the 
state,  or  more  than  forty  miles  from  the  place  where  the 
will  is  to  be  proved,  the  court  or  clerk  may  issue  a  commis- 
sion, annexed  to  the  will,  and  directed,  if  the  witness  re- 
sides out  of  the  United  States,  to  any  court  having  a  seal. 
or  mayor,  or  other  chief  ofificer  of  any  city  or  town  having 
a  seal,  or  to  any  minister  or  consul  where  the  witness  may 
reside;  if,  out  of  the  State  of  Missouri,  and  within  the 
United  States,  to  any  court  having  a  seal,  or  to  any  notary 
public  in  the  state,  territory,  or  district  where  the  witness 
resides;  and  if  within  this  state,  to  any  court  having  a  seal, 
or  judge  thereof,  or  justice  of  the  peace,  notary  public  or 
mayor  or  other  chief  officer  of  any  city  or  town  in  the 
county  w^here  the  witness  resides,  empowering  him  to  take 
and  certify  the  attestation  of  such  witness.^^ 

17  Rev.  St.  1909,  §  550. 


58  THE    PROBATE    OF   WILLS  §  67 

Form  of  Commission 
State  of  Missouri,  | 

Comity.         j    '  ■ 

The  State  of  Missouri  to  any ,  greeting: 

Kno\^'  ye,  tliat  we  hereby  empower  you  to  cause  to  come  before 
you  at  the  time  and  place  to  be  by  you  appointed,  O.  R..  an  attest- 
ing witness  to  the  annexed  instrument  of  writing,  purporting  to  be 
the  hist  will  and  testament  of  R.  R.,  deceased,  and  to  then  and 
there  examine  him,  the  said  O.  R.,  on  oath,  touching  his  knowledge 
of  the  execution  of  said  instrument,  and  of  the  condition  of  the 
mind  of  the  said  R.  R.  at  the  time  of  the  execution  and  publication 
of  the  same  as  his  last  will  and  testament.  The  examination  thus 
taken,  you  will  reduce  to  writing  and  cause  the  same  to  be  sub- 
scribed and  sworn  to  by   the  said  O.   R.,  and  thereupon  you   shall 

certify  the  same  under  your  hand  to  of  our  court  of 

said  county. 

In  witness  whereof,  I,  of  said court,  have  hereunto 

set  my  name  and  atfixed  the  seal  of  said  court,  at  on  this 

day  of ,  19—.  J.  R. 

[L.  S.]  (Style  of  office.) 

The  officer  acting  under  the  commission  should  cause  the 
witness  named  in  it  to  be  examined,  on  oath,  touching  the 
execution  of  the  will,  and  certify  and  return  his  testimony 
to  the  court  whence  the  commission  issued. 

§  68.  Return. — The  examination  may  be  in  the  follow- 
ing form : 

Return  to  Commission 

State  of  ,     ]  ... 

County  of  ,    [''' 

Pursuant  to  the  authority  given  by  the  annexed  commission  is- 

.sued  by  tlie  of  the  court  of  the  county  of ,  and 

state  of  Missouri,  I,  J.  P.,  (state  the  name  and  style  of  the  offiecr 

talcing  the  testimony)  did  on  the  day  of  ,  19 — ,  cause 

to  come  before  me  at  (my  office)  in  the  county  of  ,  and  state 

of ,  W.  W.  of ,  who  being  duly  sworn,  on  his  oath  states, 

that  R.  R.,  the  testator,  signed  his  name  to  the  writing  annexed 
to  the  commission  hereto  attached,  as  his  last  will  and  testament, 
(or  that  A.  J.  signed  it  for  him  by  his  direction,  in  his  presence), 
that  the  .said  R.  R.  was  of  sound  mind  and  over  twenty-one  years 
of  age  at  the  time  of  executing  the  same,  and  that  he,  the  said  W. 

W.,  and  ¥j.  F.  (and ),  subscribed  their  names  thereto  as  attesting 

witnesses  in  the  presence  of  and  at  the  request  of  said  R.  R.,  and 
in  the  presence  of  each  other. 

(Set  out  the  evidence.)  W W . 

Sworn  to  and  subscribed  before  me  this day  of  — —— ,  19 — , 

and  I  certify  that  the  foregoing  testimony  of  the  said  W.  W.  was 
by  "me  reduced  to  writing,  and  by  him  subscribed  in  my  presence, 
on  the  day  and  year,  and  at  the  jilace  above  written,  and  his  tes- 
timony, so  by  me  taken  and  certified,  is  herewith  returned. 

J P . 

(Style  of  office.) 


§  71  THE    PROBATE    OF   WILLS  59 

The  testimony  thus  taken  will  have  the  same  force  as  if 
taken  before  the  ccnirt  or  clerk/'* 

§  69.  Witnesses  Dead. — Where  one  of  the  witnesses  to 
the  will  has  been  examined,  and  the  other  witness  or  wit- 
nesses are  dead,  insane,  or  their  residences  unknown,  proof 
must  be  made  of  the  hand-writing  of  the  testator,  and  of 
the  other  witness  or  witnesses,  and  of  such  other  circum- 
stances as  would  be  sufficient  to  prove  a  will  in  a  trial  at 
common  law.^''  If  it  should  appear  to  the  satisfaction  of 
the  court,  or  clerk,  that  all  the  subscribing  witnesses  to  the 
will  are  dead,  insane,  or  their  residences  unknown,  proof  of 
the  hand-writing  of  the  testator,  and  of  the  subscribing  wit- 
nesses to  the  will,  must  be  made  and  received,  together  with 
such  other  facts  and  circumstances  as  would  be  sufficient 
to  prove  the  will  in  a  trial  at  law.-*^ 

§  70.  All  the  proof  adduced  in  support  of  any  will,  must 
be  reduced  to  writing,  signed  by  the  witnesses  and  certified 
by  the  judge  of  probate  or  clerk.-'  It  is  not  necessary  to 
record  the  evidence  taken  in  support  of  the  will,  but  the 
judgment  of  the  court  establishing  the  will  should  show 
that  witnesses  were  examined  and  the  necessary  proof 
taken. -- 

§  71.  Hand-writing — How  Proved. — When  it  becomes 
necessary  to  prove  the  hand-writing  of  the  testator  or  of  the 
witnesses  to  the  w-ill,  it  may  be  done  by  the  evidence  of 
persons  acquainted  with  their  hand-writing.  And,  even  if 
the  witness  has  not  seen  the  testator  or  attesting  witness 
write,  if  he  has  corresponded  with  him,  and  in  that  way  be- 
come acquainted  with  his  signature,  he  may  testify  as  to  its 
genuineness.  The  name  or  hand-writing  in  question  may 
be  compared  with  any  writing  proved  to  the  satisfaction 
of  the  judge  to  be  genuine,  and  such  writing  may  be 
submitted  to  the  court  or  jury  with  other  evidence  touch- 
ing the  genuiness  of  the  signature  in  question.-^  When 
the  proof  of  the  will   is   made  by  proof  of  the  signatures 

18  Rev.  St.  1900.  §  551.  20  Rev.  St.  1909,  §  553. 

19  Rev.  St.  1909,  §  552.  21  Rev.  St.  1909,  §  554. 

22  Charlton  v.  Brown,  49  Mo.  35.3;  Rodney  v.  McLaughlin.  97  Mo. 
42C,  9  S.  W.  726. 

2  3  Rev.  St.  1909,  §  6382;  St.  Louis  Nat.  Bank  v.  Hoffman.  74  Mo. 
App.  203;  State  v.  Thompson.  141  Mo.  408,  42  S.  W.  949;  State 
V.  Stark.  202  Mo.  210.  221,  1(H3  S.  W.  642;  Sanders  v.  North  End 
Building  &  Loan  Ass'n,  178  Mo.  674,  680.  77  S.  W.  833. 


60  THE   PROBATE    OF   WILLS  §  72 

of  the  testator,  and  of  attesting  witnesses,  it  should  be 
fortified  if  possible  by  other  circumstances,  such  as  the 
acknowledgment  of  the  testator  that  he  had  made  a  will, 
and  of  its  terms,  or  that  he  had  deposited  it  in  a  par- 
ticular place,  in  which  it  was  found,  or  that  it  was  found 
in  his  possession  among  his  papers,  or  other  personal  ef- 
fects. In  the  proof  of  wills,  as  in  all  other  matters,  the 
law  requires  that  the  best  evidence  shall  be  produced,  or  its 
absence  satisfactorily  accounted  for,  before  evidence  of  an 
inferior  degree  can  be  received ;  therefore,  if  any  of  the 
attesting  witnesses  are  living  and  their  testimony  can  be 
procured,  evidence  of  the  hand-writing  will  not  be  allowed, 
as  it  is  not  the  best  evidence  in  the  case. 

§  72.  Admitted  against  the  Evidence  of  Attesting  Wit- 
ness.— A  will  may  be  admitted  to  probate  as  duly  executed, 
if  the  testimony,  in  the  opinion  of  the  court,  should  war- 
rant it,  notwithstanding  the  attesting  witnesses  may  have 
no  recollection  at  all  of  its  execution,  or  one  only  may  af- 
firm and  the  other  negative,  or  even  both  should  negative 
a  compliance  with  the  statute  in  its  execution,  or  depose  to 
the  incapacity  of  the  testator.^"*  If  a  subscribing  witness 
should  deny  the  execution  of  the  will,  he  may  be  con- 
tradicted as  to  the  fact  by  another  subscribing  witness,  or 
other  testimony ;  and  even  were  all  the  attesting  witnesses 
to  deny  their  attestation  of  the  will,  they  might  be  con- 
tradicted and  the  will  established  by  opposing  testimony.^^ 
If  an  attesting  witness  is  competent  at  the  time  of  the  at- 
testation, but  becomes  incompetent  afterward,  the  will  may 
be  established  by  secondary  evidence.  Where  the  subscrib- 
ing witnesses  are  heirs  at  law  of  the  testator,  but  obtain 
nothing  under  the  will  and  so  are  competent  to  testify  to  its 
due  execution,  but  refuse  to  testify  at  the  probate  of  the 
will,  secondary  evidence  to  prove  its  due  execution  is  ad- 
missible.^® 

§  73.  Proof  of  Lost  Will. — If  a  will  has  been  lost  or  de- 
stroyed, without  the  knowledge  of  the  testator,  its  exist- 
ence,  due  execution   and   contents   may  be   established   by 

24  Odenwaelder  v.  Schorr,  8  'Slo.  App.  458 ;  Morton  v.  Heidorn, 
135  Mo.  60S,  37  S.  W.  504;  Craig  v.  Craig,  1.5G  Mo.  358,  56  S.  W. 
1097;    Lorts  v.  Wasli,  175  Mo.  487,  75  S.  W.  95. 

2  5  Mays  V.  Mays,  114  Mo.  536,  21  S.  W.  921;  Morton  v.  Heidorn, 
135  Mo.  608,  37  S.  W.  504. 

2«  Holmes  v.  Hollonian,  12  Mo.  535. 


§  74:  THE   PROBATE   OF   WILLS  61 

secondary  evidence,  such  as  a  copy,  the  testimony  of  sub- 
scribing witnesses,  and  of  other  persons  who  may  have 
seen  the  will  and  can  testify  as  to  its  existence  and  con- 
tents.-^ And  it  seems  that  if  the  whole  of  such  a  will  can- 
not be  established,  probate  will  be  granted  of  so  much  of 
it  as  can  be  proved;-'*  and  when  any  portion  of  the  will 
does  not  properly  belong  to  it,  or  is  illegal  or  fraudulent,  it 
may  be  excluded  and  the  balance  of  the  will  be  probated.-" 
If  the  due  execution  of  a  last  will  be  satisfactorily  proved 
by  the  proper  number  of  witnesses,  or  other  evidence,  its 
contents  may  be  established  by  the  testimony  of  one  wit- 
ness.***^  It  is  a  rule  of  general  application  to  the  proof  of 
any  lost  writing  or  written  instrument,  that  the  loss  of  the 
original  must  be  established,  either  by  showing  that  it  had 
been  destroyed  accidentally  or  that  after  diligent  search, 
where  it  is  usually  kept  or  most  likely  to  be  found,  it  could 
not  be  found,  in  order  to  admit  secondary  evidence  of  its 
contents. ^^ 

§  74.  Soundness  of  Mind, — In  proving  a  will  in  the  first 
instance  before  the  probate  court  or  clerk,  the  subscribing 
witnesses  must  testify  as  to  the  soundness  of  the  testator's 
mind  at  the  time  of  making  the  will;  ^-  but  their  testimony 
is  not  conclusive  either  for  or  against  the  validity  of  the 
will.  Other  witnesses  who  were  acquainted  with  the  tes- 
tator at  the  time  of  the  execution  of  the  will  may  testify 
upon  the  point.  The  general  rule  is  that  witnesses  must 
speak  to  the  facts  within  their  own  knowledge;  that  their 
mere  opinions  are   not  admissible.     But  under  the  excep- 

2T  Varnon  v.  Varnou,  67  Mo.  App.  534;  Dickey  v.  IMalechi,  6  Mo. 
177,  34  Am.  Dee.  130 ;  Graham  v.  O'Fallon,  4  Mo.  338 ;  Hamilton  v. 
Crowe,  175  Mo.  634,  75  S.  W.  389. 

^«  Southworth  v.  Southworth.  173  Mo.  59,  73  S.  W.  129;  Dickey 
V.  Malechi,  6  Mo.  177,  34  Am.  Dec.  130;  Jackson  v.  Jackson.  4  Mo. 
210. 

29  Kenrick  v.  Cole.  01  Mo.  572;  Banks  v.  Banks,  65  Mo.  432;  3 
Redfielfl  on  WilLs,  52.  pi.  2. 

30  Graham  v.  O'Fallon,  4  Mo.  338;  Dickey  v.  Malechi,  0  Mo.  177, 
34  Am.  Dec.  1.30. 

31  Mays  V.  Mays.  114  Mo.  536,  21  S.  W.  921;  Meier  v.  Meier,  105 
Mo.  411,  16  vS.  W.  223 ;  Hume  v.  Hopkins,  140  Mo.  65,  41  S.  W.  784 ; 
Brown  v.  Massey,  138  Mo.  519,  38  S.  W.  939 ;  Cross  v.  Williams,  72 
Mo.  577. 

3  2Withinton  v.  Withinton,  7  Mo.  589;  Mays  v.  Mays,  114  Mo. 
536,  21  S.  W.  921;  Fulbright  v.  Perry  County,  145  Mo.  432,  46  S. 
W.  955. 


62  THE   PROBATE    OF    WILLS  §  75 

tions  to  the  rule,  persons  called  experts  may  give  their  opin- 
ions in  evidence  in  relation  to  matters  of  science  or  skill, 
and  any  person  may  give  his  opinion  as  to  the  identity  of 
a  person  or  thing.  So  touching  the  mental  capacity  or  san- 
ity of  the  testator,  any  witness  may  state  his  opinion  in  con- 
nection with  the  facts  upon  which  it  is  founded,  as  the  ap- 
pearance and  conduct  of  the  testator. ^•■'  But  such  a  witness 
cannot  be  permitted  to  state  whether  the  testator  was,  or 
was  not,  in  his  opinion,  of  sufficient  mental  capacity  to 
make  a  will.^*  If  the  testator  is  found  to  have  sufficient 
capacity,  the  injustice  or  inequalities  in  the  disposition  of 
his  property  will  not  defeat  the  will."^ 

§  75.  Order  of  Probate. — The  nature  of  the  proof  and 
the  nvmiber  of  witnesses  required  to  establish  a  will  are 
generally  regulated  by  statute.  Two  or  more  witnesses 
must  attest  the  execution  of  a  w^ill,  and  it  is  sufficient  if  two 
of  the  witnesses  depose  as  to  its  due  execution.  And  if  the 
witnesses  are  dead,  or  cannot  be  found,  proof  of  the  hand 
writing  of  the  testator  and  of  two  of  the  witnesses  will  be 
sufficient.  If,  upon  hearing  all  the  evidence,  it  appears  that 
the  will  was  duly  executed  in  accordance  with  the  provi- 
sions of  the  statute,  and  that  the  testator  was  of  sound 
mind,  and  the  will  was  not  procured  by  fraud  or  undue  in- 
fluence, the  court  or  clerk  will  declare  the  will  proved  and 
grant  a  certificate  of  probate."*^  But  if  the  evidence  is  in- 
sufficient the  instrument  should  be  rejected  as  not  being  a 
valid  or  legal  will,  and  a  certificate  of  rejection  granted. 
The  certificate,  whether  of  probate  or  rejection,  should  be 
written  on  the  back  of  the  instrument,  or  be  annexed  to  it, 

33  Hendley  v.  Globe  Refinery  Co.,  100  Mo.  App.  20,  79  S.  W.  1163; 
Hurt  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  94  Mo.  255,  7  S.  W.  1,  4  Am. 
St.  Rep.  374;  Sharp  v.  Kansas  City  Cable  Ry.  Co.,  114  Mo.  94,  20 
S.  W.  03 ;  State  v.  Soper,  148  Mo.  217.  49  S.  W.  1007 ;  Richardson 
V.  Smart.  152  Mo.  623,  54  S.  W.  542,  75  Am.  St.  Rep.  488 ;  State  v. 
Bronstine,  147  Mo.  520,  49  S.  W.  512 ;   Appleby  v.  Brock,  76  Mo.  314. 

3  4  Farrell's  Adm'r  v.  Brennau's  Adm'x,  32  Mo.  .328.  82  Am.  Dec. 
137;  Wightman  v.  Grand  Lodge,  Ancient  Order  of  United  Workmen 
of  Missouri,  121  Mo.  App.  252,  98  S.  W.  829. 

3  5McFadin  v.  Catron,  138  Mo.  197,  38  S.  W.  932;  Maddox  v. 
Maddox,  114  Mo.  35,  21  S.  W.  499,  35  Am.  St.  Rep.  734;  Dausman 
V.  Rankin,  189  Mo.  677,  88  S.  W.  696,  107  Am.  St.  Rep.  391;  Ful- 
bright  V.  Perry  County,  145  Mo.  432,  46  S.  W.  955;  Cash  v.  Lust, 
142  Mo.  630,  44  S.  W.  724,  64  Am.  St.  Rep.  576. 

:•«  Rev.   St.  1909,  §  549;    Creasy  v.  Alverson,  43  Mo.  13. 


§  77  THE    PROBATE    OF   WILLS  63 

and  the  docunieiit  must  remain  among  the  files  and  records 
of  the  court. 

State  of  Mis.souri,  ] 
County  of  \  ^^' 

I,  ,  jiulse  (or  clerk)  of  the  probate  court  of  the  county  and 

state  aforesaid,  having  examined  tlie  foregoing  instrument  of  writ- 
ing, signed  by  D.  C,  and  purporting  to  be  the  last  will  and  testa- 
ment of  D.  C,  deceased,  and  liaving  heard  the  te.stimony  of  A.  U. 
and  A.  H.  (the  names  of  the  witnesses  examined),  subscribing  wit- 
nesses thereto,  in  relation  to  the  execution  of  the  same,  do  declare 
and  adjudge  said  instrument  of  writing  to  be  the  last  will  and  tes- 
tament of  said  D.  C,  deceased,  late  of county,  state  of , 

and  record  the  same  as  such. 

In  Testiniony  Whereof,  I  have  hereunto  set  my  hand  and  affixed 

the  seal  of  said  probate  court  of  — ■ — ■ —  county,  at  office  in  , 

this day  of  ,  11) — . 

IL.  S.]  S.  A.,  . 

(Judge  or  Clerk.) 

§  76.  Codicil  Must  be  Proved. — If  the  testator  has  made 
a  codicil  to  his  will,  it  must  be  proved  in  the  same  manner, 
and  the  certificate  may  include  the  codicil  and  will,  as  to- 
gether constituting  the  will  of  the  deceased.  The  same 
proof  is  recpiired  to  establish  a  codicil,  and  it  may  be  of  the 
same  character  as  that  used  in  proving  a  will,  and  where 
there  are  more  than  one  codicil,  one  may  be  probated  and 
the  other  rejected,  or  both,  or  all  may  be  rejected,  as  not 
properly  executed,  and  the  will  without  them  be  received. 
Where  a  codicil  repuljlishes  a  will,  or  a  will  is  republished 
by  another  instrument,  the  due  execution  of  such  codicil 
or  other  instrument  and  proof  thereof,  in  the  manner  re- 
quired in  the  proof  of  wills,  may  be  a  sufficient  proof  of  the 
will  itself  to  admit  it  to  probate,  without  proof  of  the  ex- 
ecution of  the  original  will  in  the  first  instance. 

§  77.  Proof  of  Nuncupative  Will. — In  Missouri,  a  nun- 
cupative will  cannot  be  proved  until  fourteen  days  after 
the  death  of  the  testator,  nor  later  than  six  months  after 
speaking  the  testamentary  words,  unless  the  substance  of 
such  words  were  reduced  to  writing  within  thirty  days  after 
they  were  spoken.  And  in  any  case  before  such  a  will  can 
be  proved,  the  words  or  substance  of  them  must  be  com- 
mitted to  writing,  and  a  citation  issued,  accompanied  with 
a  copy  of  the  words  constituting  the  will,  to  the  widow  or 
next  of  kin  of  the  deceased,  notifying  them  where  and  when 
the  will  shall  be  proved,  in  order  that  they  may  be  present 
and  contest  the  probate  of  such  will.^^ 

3  7  Kev.  St.  1900.  §§  501,  5U2. 


64  THE   PROBATE   OF  WILLS  §  77 

Form  of  Citation 
State  of  ISIissoiiri,  ] 

County.         I " 

The  State  of  Missouri,  to  Greeting: 

Whereas,  A.  B.,  ou  the  day  of  -,  19 — ,  presented  to 

tlie  court  of  said  county,  an  instrument  in  writing,  said  to 

be  the  unwritten  or  nuncupative  hist  will  and  testament  of  R.  R., 

late  of  ,  deceased,  (a  copy  of  which  will  is  hereto  annexed), 

asking  that  the  same  may  be  proved,  and  by  the  court  adjudged  to 
be  the  last  will  and  testament  of  said  R.  R.,  deceased. 

You  are,  therefore,  hereby  commanded  to  cite  and  give  notice  to 

Mrs.  R,,  the  widow,  and ,  children  and  next  of  Ivin  of  the  said 

R,  R.,  deceased,  to  be  and  appear  before  the  court  of  

county,  on  the  — • — —  day  of  ,  19 — ,  the  day  of  the 

term,  19 — ,  thereof,  at  the  court  house  in  ,  tlien  and 

there  to  witness  proceedings  in  the  matter  of  proving  tlie  said  in- 
strument to  be  the  last  will  of  said  R.  R.,  deceased.  And  hereof 
malce  due  service  and  return  as  the  law  directs. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  the  seal 

of  said  court  hereto  affixed  at  office  in  ,  this  day  of 

,  19—. 

[L.  S.]  J.  R. 

(Style  of  office.) 

§  78.  Judgment  of  Probate. — When  a  decision  is  made 
by  the  court  upon  the  question  of  admitting  a  will  to  pro- 
bate, an  entry  thereof  should  be  made  in  the  records,  recit- 
ing briefly  the  proceedings  and  order  of  the  court.  The 
probate  of  a  will  is  a  judicial  act  which  can  only  be  shown 
by  the  records  of  the  court. ^^  The  certificate  of  probate 
granted  by  the  clerk  of  the  court  is  not  conclusive  for  or 
against  the  admission  of  the  will  to  probate,  and  without 
an  order  made  by  the  court  at  its  next  term  thereafter,  con- 
firming his  act,  it  would  not  constitute  sufficient  evidence 
that  the  will  had  been  duly  admitted  to  probate.^'*  Yet,  it 
has  been  held  that  when  the  will  has  been  recorded  as  re- 
quired by  law,  with  the  proof  of  its  execution  indorsed  upon 
it  and  certified  by  the  clerk,  it  may  be  inferred  after  the 
lapse  of  many  years  that  the  order  of  the  court  admitting 
it  to  probate  had  been  made,  although  no  certificate  of  such 
fact  was  attached  to  the  copy  produced  in  evidence.*"  The 
judgment  of  probate  of  a  will,  like  any  other  judgment  or 
judicial  act,  is  binding  on  all  the  world  until  set  aside  in  the 

38  Creasy- V.  Alverson,  43  Mo.  13;  Ilaile  v.  Hill,  13  Mo.  612;  Charl- 
ton V.  Brown,  49  Mo.  353. 

39  Creasy  v.  Alverson.  43  Mo.  13;  Smith  v.  Estes,  72  Mo.  310; 
Jourden  v.  Meier,  31  Mo.  40;  Barnard  v.  Bateman,  76  Mo.  414; 
Snuffer  v.  Howerton,  124  Mo.  037,  28  S.  W.  166. 

4  0  Rothwell  V.  .Jamison,  147  Mo.  601,  49  S.  W.  503. 


§  78  THE    PROBATE    OF    WILLS  65 

mode,  and  within  the  time  prescribed  by  law;  nor  can  its 
validity  be  attacked  collaterally.'*^  It  can  only  be  done  in  a 
proceeding  instituted  for  that  purpose  under  the  statute.** 
If  the  proof  be  lost  or  misplaced,  or  has  not  been  preserved, 
the  judgment  of  the  court  estaljlishing  the  will,  or  a  cer- 
tified copy  thereof  would  be  admissible,  and  could  not  be 
attacked  in  a  collateral  proceeding,*''  and  the  insufficiency 
of  the  proof  on  which  the  judgment  of  probate  was  given 
is  no  objection  to  its  admissibility.**  Unless  a  will  be  pro- 
bated it  cannot  be  received  as  evidence  of  title,  though  it 
may  be  admitted  to  show  color  of  title  to  sustain  adverse 
possession. *°  And  a  will  concerning  personalty  probated 
in  a  foreign  state  may  be  admitted  here,  though  not  pro- 
bated here,*"  but  a  will  affecting  real  estate  has  no  extra 
territorial  force  beyond  the  jurisdiction  of  the  state  where 
it  is  probated.*'  An  appeal  does  not  lie  from  an  order  grant- 
ing probate  of  the  will.*^  The  probate  of  a  will  is  in  effect 
interlocutory,  and  becomes  final  only  at  the  expiration  of 
the  time  allowed  for  its  contest,**^  or  more  properly  speak- 
ing, it  is  effective  and  may  be  executed  from  the  time  it  is 
established  until  it  is  defeated  by  a  contest  in  the  circuit 
court. '*'  But  when  so  defeated,  a  conveyance  by  a  devisee 
after  the  probate  of  the  will  passes  no  title. 

■n  Jourden  v.  Afeier.  31  Mo.  40;  Bunks  v.  Banks.  65  Mo.  432; 
Stowe  V.  Stowe,  140  Mo.  594,  41  S.  W.  951;  Dihvorth  v.  Rice,  48 
Mo.  124;  Fir.st  Baptist  ('luirch  v.  Robborson,  71  Mo.  326;  Cohen  v. 
Herbert,  205  Mo.  537.  104  S.  W.  84,  120  Am.  St.  Rep.  772  ;  Stevens 
V.  Larwill,  110  Mo.  App.  140,  84  S.  W.  113;  Stevens  v.  Oliver,  200 
Mo.  492,  98  S.  W.  492. 

42  In  re  Duty's  Estate.  27  Mo.  43;  Gohen  v.  Herbert,  205  Mo.  537, 
104  S.  W.  84,  120  Am.   St.  Rep.  772. 

4  3  Matney  v.  Graham.  50  Mo.  559:    Charlton  v.  Brown.  49  Mo.  353. 

44  In  re  Duty's  Estate.  27  Mo.  43;  .Tourden  v.  Meier,  31  Mo.  40; 
Creasy  v.  Alverson,  4."'.  Mo.  13 ;  Bradstreet  v.  Kinsella,  76  Mo.  63 ; 
Stevens  v.  Larwill.  110  ^io.  App.  140,  84  S.  W.  113, 

4  5  I'ettitt  v.  Black,  13  Xeb.  142,  12  N.  W.  841. 

46M(Cnuslin  v.  MKiuire.  14  Kan.  250. 

47  Emmons  v.  CJordon.  140  Mo.  490,  41  S.  W.  998.  62  Am.  St.  Rej). 
734;  Fenderson  v.  Missouri  Tie  &  Timber  Co.,  104  Mo.  App.  290. 
78  S.  W.  819:    Turner  v.  Campbell.  124  Mo.  App.  1.33,  101  S.  W.  119. 

4  8  In  re  Duty's  Estate,  27  Mo.  43. 

4  0  Cash  v.  Lu.st,  142  Mo.  630.  44  S.  W.  724.  64  Am.  St.  Rep.  576; 
Lamb  v.  Helm,  26  Mo.  420;  Teokenbrock  v.  McLaufjhlin,  209  Mo. 
533,  108  S.  W.  46;    Hogan  v.  Hinchey,  195  Mo.  527,  94  S.  W.  522. 

6  0  Stowe  V.  Stowe,  140  Mo.  594,  41  S.  W.  951 ;  Wat.son  v.  Alder- 
son,  146  Mo.  .333,  48  S.  W.  478,  69  Am.  St.  Rep.  615 ;  Hughes  v.  Bur- 
riss,  85  Mo.  660. 

Kki.Mo.P.G.— 5 


66  THE   PROBATE    OF   WILLS  §  78 

The  following  may  be  used  as  a  form  of  the  entry  of  the 
probate  upon  the  record  : 

Proof  of  Will 

In  the  matter  of  the  estate  of  )  ^^.^^^^  ^^  ^,.^j 
J.  D.,  deceased.  j 

On  this  day  conies  A.  B.,  of .  and  produces  to  the  court  an 

instrument  in  writing,  purporting  to  be  the  Uist  will  and  testament 
of  J.  D.,  deceased,  and  attested  by  C.  D.,  E.  F.  and  J.  K.  as  wit- 
nesses;  and  the  said  A.  B.  prays  that  said  instrument  in  writing 
be  proved  and  admitted  to  record  as  tlie  last  will  and  testament  of 
the  said   J.   D.     And  it  being  shown  to  the  court  by  satisfactory 

evidence  that  said  J.  D.,  late  of  the  county  of  — ,  died  on  or 

about  the  day  of ,  19 — ,  at the  court  proceeded 

to  hear  the  proof  of  the  execution  and  publication  of  said  instru- 
ment as  his  last  will. 

And  thereupon  come  E.  D.  and  E.  F.,  two  of  the  said  attesting 
witnesses  who   being  first  duly  sworn,  say  respectively,  that  they 

were  well  acquainted  with  J.  D.,  late  of county,  deceased,  in 

his  life  time.  And  the  said  instrument  so  produced  by  said  A.  B., 
purporting  to  be  the  last  will  of  said  J.  D.,  being  here  shown  to 
them,  they  each  further  say  that  they  were  present  at  the  execution 
of  said  will  and  saw  the  said  J.  D.  sign  it  on  the  day  of  the  date 
thereof,  and  heard  said  J.  D.  say  then  and  there  that  said  instru- 
ment was  his  last  will  and  testament ;  that  they  subscribed  their 
names  as  witnesses  thereto,  as  did  also  J.  K.,  who  was  also  present 
at  the  execution  of  said  instrument,  at  the  request  of  the  .said  J.  D., 
in  his  presence  and  in  the  presence  of  each  other,  and  that  the  said 
J.  D.  was  then  of  sound  and  disposing  mind  and  memory,  of  full 
age  and  not  under  any  restraint,  and  was  competent  to  make  a  will. 
That  the  testimony  of  said  witnesses  was  reduced  to  writing  by  the 
court  and  signed  by  them  respectively. 

And  now  the  court  being  sufficiently  advised  by  the  evidence  of 
said  witnesses  of  the  proper  and  legal  execution  of  said  will,  it  is 
ordered  and  adjudged  by  the  court,  that  said  instrument  in  writing 
be  considered  proven  and  the  same  is  established  and  adjudged  to 
be  the  last  will  and  testament  of  the  said  J.  D.,  late  of  said  county, 
deceased,  and  that  it  be  admitted  to  record  as  such. 

Order  of  Approval  and  Confirmation  of  Probate  by  Clerk  in 

Vacation 

In  the  matter  of  the  e.state  of  1  ^i      *    *  ^t-h 
^    ,^      ,  ,  '  Proof  of  Will. 

.1.  D.,  deceased.  ) 

It  being  shown  to  the  court  now  here  that  in  the  vacation  of  this 

court,  to  wit,  on  the  day  of  — < ,  19 — ,  an  instrument  in 

writing,  purporting  to  be  the  last  will  and  testament  of  J.  D.,  de- 
ceased, and  attested  by  C.  D.,  E.  F.  and  G.  H.  as  witnesses,  was  pro- 
duced before  the  clerk  of  this  court  to  be  proved  and  admitted  to 
record  as  the  last  will  of  said  J.  D.,  deceased.     And  it  being  shown 

that  said  J.  D.  died  on  or  about  the  day  of ,  19 — ,  the 

said  clerk  proceeded  to  take  and  hear  the  proof  of  the  execution  of 


78  THE   PROBATE   OF  WILLS 


67 


said  instrument  as  his  last  will.  And  thereupon  C.  D.  and  E.  F.. 
two  of  said  attesting  witnesses,  l)eing  first  duly  sworn  ui.on  their 
oaths,  said  that  they  were  well  acquainted  with  the  said  J.  I>.  in 
his  life  time,  and  they  were  present  at  the  execution  of  said  will  and 
saw  the  said  J.  D.  sign  it  on  the  day  of  the  date  thereof,  and  heard 
him  say  then  and  there  that  said  instrument  was  his  last  will  and 
testament;  that  they  suhscribed  their  names  as  witnesses  thereto 
at  the  request  of  said  J.  D.,  in  his  presence  and  in  the  presence  of 
each  other,  and  that  the  said  J.  I>.  was  then  of  sound  and  disposing 
mind  and  memory,  of  full  age.  and  not  under  any  restraint  and  was 
competent  to  make  a  will,  which  testimony  of  said  witnesses  was 
reduced  to  writing  and  signed  by  them  respectively,  and  is  now 
here  i)roduced  in  court.     And  said  clerk  having  declared  said  will 

proved,  granted  a  certificate  of  probate  on  said day  of , 

10—. 

And  the  court  having  inspected  said  will,  and  seen  and  heard 
the  testimony  of  the  said  attesting  witnesses,  so  tuken  by  the  clerk 
of  this  court  in  vacation,  as  to  the  execution  of  said  will,  and  being 
sufficiently  advised,  it  is  ordered  and  adjudged  by  the  court  that 
said  instrument  be  considered  proved  and  the  same  is  adjudged  to 
be  the  last  will  of  said  J.  D.,  deceased,  and  the  said  proceedings 
and  action  of  the  clerk  in  the  premises  be  and  the  same  are  in  all 
things  ratified  and  confirmed,  and  that  said  will  be  admitted  to  rec- 
ord. 


68  EECOBDING   OF   WILLS  §  T9 


CHAPTER  VIII 

RECORDING  OF  WILLS 

§  79.     Wills  to  be  recorded — Effect  thereof. 
80.     Same — Wills  conveying  land. 

§  79.     Will  to  be  Recorded— Effect  Thereof.— When  a 

will  has  been  admitted  to  probate,  it  must  be  recorded  in  a 
book  kept  for  that  purpose  within  thirty  days  afterward, 
and  the  original  must  be  carefully  filed  in  the  office  of  the 
judge  or  clerk. ^  A  will  duly  proved,  recorded,  certified  by 
the  judge,  or  clerk,  and  attested  by  his  seal  of  office,  may 
be  read  as  evidence  without  further  proof."  And  the  record 
of  any  will  made,  proved  and  recorded  as  aforesaid,  and  the 
exemplification  of  said  record  by  the  judge  or  clerk  of  the 
court  in  whose  custody  it  may  be,  will  be  received  as  evi- 
dence and  will  be  as  efifectual  in  all  cases  as  the  original 
would  be  if  produced  and  proved,  and  may  in  like  manner 
be  repelled  by  contrary  proof.^  In  making  a  copy  of  a  will 
to  be  used  in  evidence,  the  transcript  must  not  only  contain 
a  true  copy  of  the  will,  but  it  must  also  contain  a  copy  of 
the  probate  of  such  will ;  i.  e.,  the  proof  of  the  will  and  the 
order  admitting  it  to  probate  ;  the  whole  to  be  duly  authen- 
ticated by  the  proper  certificate  of  the  officer.*  It  need  not 
contain  the  evidence  in  detail.^ 

§  80.  Same — Wills  Conveying  Land. — In  all  cases  where 
lands  are  devised  by  last  will,  a  copy  of  the  will  must  be  re- 
corded in  the  recorder's  office  in  the  county  where  the  land 
is  situated,  and  if  the  lands  are  situated  in  different  coun- 

1  Rev.  St.  1909,  §  56.3 ;  Rothwell  v.  Jamison,  147  Mo.  601,  49  S. 
W.  503. 

2  Rev.  St.  1909,  §  564 ;    Matney  v.  Graham,  50  Mo.  559. 

8  Rev.  St.  1909,  §  565 ;  Noe  v.  Kern,  93  Mo.  367,  6  S.  W.  239.  3 
Am.  St.  Rep.  544;  Barnard  v.  Bateman,  76  Mo.  414;  Charlton  v. 
Brown,  49  Mo.  3.53 ;  Rodney  v.  McLaughlin,  97  Mo.  426,  9  S.  W.  726 ; 
Keith  V.  Keith,  97  Mo.  223,  10  S.  W.  597 ;  Tittman  v.  Thornton,  107 
Mo.  500,  17  S.  W.  979,  16  L.  R.  A.  410. 

4  Bright  V.  White,  S  Mo.  422  ;  Harvy  v.  Chouteau.  14  Mo.  587,  55 
Am.  Dec.  120;  Budd  v.  Brooke,  3  Gill  (Md.)  19S,  43  Am.  Dec.  321; 
Ratcliff  V.  Ratcliffe,  12  Smedes  &  M.  (Miss.)  134;  Harris  v.  Ander- 
.son,  9  Humph.  (Tenn.)  779;  Cornelison  v.  Browning,  10  B.  Mon. 
(Ky.)  425. 

5  Charlton  v.  Brown,  49  Mo.  353. 


§  80  BECORDING   OF   WILLS  69 

ties,  a  copy  of  the  will  must  be  recorded  in  the  recorder's 
office  in  each  county,  within  six  months  after  probate." 
This  statute  is  directory,  and  the  failure  to  so  record  the 
will  would  not  defeat  the  title  of  a  devisee  when  other  rights 
have  not  intervened.'' 

6  Rev.  St.  1900.  §  n(U; ;  Lewis  v.  City  of  St.  Louis,  3  Mo.  App.  582 : 
Rodney  v.  Liiiulau,  104  Mo.  251.  15  8.  W.  9G2 ;  Brooks  v.  Eskins, 
24  Mo.  App.  29G:  Rodney  v.  McLaughlin.  97  Mo.  426,  9  S.  W.  726; 
Wolf  V.  Brown,  142  Mo.  612,  44  S.  W.  733. 

7  Wolf  V.  Brown.  142  Mo.  612,  44  S.  W.  733 ;  Rodney  v.  McLaugh- 
lin, 97  Mo.  426,  9  S.  W.  726. 


70  FOREIGN   WILLS  §  81 

CHAPTER  IX 
OF  FOREIGN  WII.LS 

§  81.     What  law  governs — Domicile. 

82.  Same — Law  of  domicile. 

83.  Effect  of  judgment  of  probate  in  anotlier  state. 

§  81.  What  Law  Governs. — It  is  sometimes  important 
to  consider  the  law  of  domicile  with  reference  both  to  wills 
and  the  succession  to  the  estate  of  intestates.  Formerly 
there  was  a  difference  of  opinion  among  foreign  jurists  as 
to  whether  a  will  of  personal  estate  executed  as  required  by 
the  lex  loci  actus,  but  not  in  conformity  with  the  law  of  the 
testator's  domicile,  was  a  valid  disposition  of  such  property. 
But  it  appears  to  be  the  generally  received  doctrine  now, 
that  the  law  of  the  testator's  domicile  at  the  time  of  his 
death  governs  as  to  his  testamentary  capacity,  and  a  will  of 
personalty,  if  made  in  accordance  with  that  law,  will  be 
valid,  although  it  does  not  conform  to  the  lex  loci  actus. ^ 
And,  on  the  other  hand,  it  has  been  held  in  many  of  the 
American  states  that  if  such  a  will  be  void  by  the  law  of  the 
testator's  domicile  at  the  time  of  his  death,  it  is  a  nullity 
everywhere,  although  it  may  be  executed  in  compliance 
with  the  law  where  the  property  is  located.-  But  such  is 
not  the  law  in  Missouri.  It  is  enacted  by  statute  in  this 
state,  that  any  person  owning  real  or  personal  estate  in  this 
state  may  devise  or  bequeath  such  property,  by  last  will,  ex- 
ecuted and  proved,  if  real  estate  be  devised,  according  to  the 
laws  of  this  state,  or  if  personal  estate  be  bequeathed,  ac- 
cording to  the  laws  of  this  state,  or  of  the  country,  state  or 
territory  in  which  the  will  shall  be  made.^ 

Authenticated  copies  of  such  wills  and  the  probate  there- 
of shall  be  recorded  in  the  same  manner  as  wills  executed 
and  proved  in  this  state,  and  shall  be  admitted  in  evidence 
in  the  same  manner  and  with  like  effect.  Any  such  will 
may  be  contested  and  annulled  within  the  same  time  and  in 
the  same  manner  as  wills  executed  and  proved  in  this  state ;  * 

1  Story's  Conflict  of  Laws,  §§  391,  465,  473 ;  Nat  v.  Coons,  10  Mo. 
543. 

2  Story's  Conflict  of  Laws,  §  468. 

3  Rev.  St.  1909,  §  567  ;  Emmons  v.  Gordon,  140  Mo.  490,  41  S.  W. 
998,  62  Am.  St.  Rep.  734. 

4  Rev.  St.  1909,  §§  568,  569 ;    Gaven  v.  Allen,  100  Mo.  293,  13  S.  W. 


§  83  FOREIGN  WILLS  71 

and  a  copy  of  such  record  is  conclusive  proof  of  the  will, 
and  no  new  probate  is  necessary/'  But  if  a  will  be  made  in 
another  state  and  the  testator  moves  to  this  state  and  dies, 
the  will  must  be  probated  here." 

§  82.  Law  of  Domicile. — In  general,  the  law  of  the  dom- 
icile governs  the  rule  of  succession  to  personal  estate,  in 
case  the  deceased  died  intestate.  It  will  be  observed  that 
under  our  law  the  question  of  the  testator's  domicile  does 
not  enter  into  or  at  all  affect  the  validity  of  a  will.  In  a  de- 
vise of  lands  the  statute  is  declaratory  of  the  rule  that  a  will 
of  real  estate  must  be  made  according  to  the  lex  rei  sitae — 
the  law  of  the  place  where  the  land  is  situated.'^  But  a  will 
of  personalty  will  be  valid  if  made  in  accordance  with  the 
laws  of  this  state  or  of  the  place  where  it  is  made,  without 
regard  to  the  place  of  the  testator's  domicile.  A  will  so  far 
as  concerns  realty,  has  no  extra  territorial  force  or  validity, 
and  is  inoperative  beyond  the  jurisdiction  where  it  is  pro- 
bated. In  order  to  convey  title  to  land,  a  will  must  be  ex- 
ecuted, attested  and  probated  in  the  manner  prescribed  by 
the  law  of  the  state  where  the  land  is  located.  And  an  ex- 
ecutor appointed  in  one  state  cannot  sue  for  or  intermeddle 
with  the  property  of  the  testator,  whether  real  or  personal, 
in  another  state,  unless  the  will  be  there  proven  or  the  laws 
of  that  state  authorize  such  action  without  probating  anew.« 

§  83.  The  Probate  of  a  Will  in  another  State  is  a  Judi- 
cial Proceeding  to  the  record  of  which  "full  faith  and  cred- 
it" is  to  be  given,  when  certified  agreeably  to  the  act  of  con- 
gress, and  it  need  not  be  recorded  here  to  admit  it  in  evi- 
dence.'' This  statute  applies  to  a  will  probated  in  a  foreign 
country.^** 

501 ;    Cohen  v.  Herbert.  20.j  ^lo.  537.  104  S.  W.  84.  120  Am.  St.  Rep. 
772;    Stevens  v.  Larwill.  110  Mo.  App.  140.  84  S.  W.  li:5. 

5  Applegate  v.  Sinitli,  .31  Mo.  166;  Stevens  v.  Oliver,  200  Mo.  492. 
98  S.  ^Y.  492. 

6  Stewart  v.  Pettns.  10  Mo.  755. 

7  Nat  V.  Coons.  10  Mo.  54.S ;  Kmnions  v.  Gordon,  140  Mo.  400,  41 
S.  W.  998.  62  Am.  St.  Kep.  734. 

8  Emmons  v.  Gordon.  140  Mo.  490.  41  S.  W.  998.  62  Am.  St.  Rep. 
734 ;    Cabanne  v.  Skinker.  56  Mo.  367. 

n  Haile  v.  Hill.  13  Mo.  612 ;  Wrijibt  v.  Rutfiers.  14  Mo.  587 ;  Prad- 
street  v.  Kinsella.  76  Mo.  63 ;  I>^wis  v.  City  of  St.  I>ouis.  69  Mo.  595 : 
Drake  v.  Curtis.  88  Mo.  644  ;  Matney  v.  Graham.  50  Mo.  559 :  Gaven 
V.  Allen,  100  Mo.  293.  13  S.  W.  501 ;  Cohen  v.  Herbert,  205  Mo.  537. 
104  S.  W.  84,  120  Am.  St.  Rep.  772. 

10  Gaven  v.  Allen,  100  Mo.  293.  13  S.  W.  501. 


72  THE  CONTESTING  OF   WILLS  §  84 

CHAPTER  X 
OF  THE  CONTESTING  OF  WILLS 

}  84.  Contest — Within  what  time — Limitation. 

85.  Same — Matters  of  practice. 

86.  The  petition. 

87.  Issues  to  be  foraied  and  submitted. 

88.  Open  and  close — Procedure. 

§  84.  Within  what  Time — Limitation. — The  validity  of 
a  will  duly  proven  in  the  projjate  court  can  only  be  contested 
in  a  proceeding  instituted  for  that  purpose  under  the  stat- 
ute/ which  provides  that  if  any  person  interested  in  the  pro- 
bate of  any  will  shall  appear  within  two  years  after  the  pro- 
bate or  rejection  thereof,  and  by  petition  to  the  circuit  court 
of  the  county,  contest  the  validity  of  the  will,  or  pray  to 
have  a  will  proved  which  has  been  rejected,  an  issue  shall 
be  made  up,  whether  the  writing  produced  be  the  will  of 
the  testator  or  not,  which  shall  be  tried  by  a  jury,  or  if  nei- 
ther party  require  a  jury,  by  the  court.  The  verdict  of  the 
jury,  or  the  finding  and  judgment  of  the  court,  shall  be  final, 
saving  to  the  court  the  right  of  granting  a  new  trial,  as  in 
other  cases,  and  to  either  party  an  appeal,  in  matters  of  law 
to  the  supreme  court  or  court  of  appeals.  If  no  person  shall 
appear  within  the  time  aforesaid  the  probate  or  rejection  of 
such  will  shall  be  binding,  saving  to  infants,  married  wo- 
men, or  persons  of  unsound  mind,  a  like  period  of  two  years 
after  their  respective  disabilities,  are  removed.^  There  is 
no  appeal  from  the  decisions  of  the  probate  court  either  es- 
tablishing or  rejecting  a  will,  and  it  can  only  be  contested 
or  established  contrary  to  the  action  of  that  court  by  a  pro- 
ceeding in  the  circuit  court  within  the  statute,  where  the 
case  is  tried  de  novo.^    An  unsuccessful  contest  of  a  will  by 

1  Rev.  St.  1909,  §§  5.55,  556 ;  In  re  Duty's  Estate,  27  Mo.  43 ;  Stovve 
V.  Stowe,  140  Mo.  594,  41  S.  W.  951 ;  Cash  v.  Lust,  142  Mo.  630,  44 
S.  W.  724,  64  Am.  St.  Rep.  576;  Stevens  v.  Larvvill,  110  Mo.  App. 
140,  84  S.  W.  113 ;  Cohen  v.  Herbert,  205  Mo.  537,  104  S.  W.  84,  120 
Am.  St.  Rep.  772;    Hans  v.  Holler,  165  Mo.  47,  65  S.  W.  308. 

2  Rev.  St.  1909,  §  557. 

3  In  re  Duty's  Estate,  27  Mo.  43  ;  Kenrick  v.  Cole,  46  Mo.  85 ;  State 
ex  reL  Hamilton  v.  Guinotte,  156  Mo,  513,  57  S.  W.  281,  50  Lu  R.  A. 


§  85  THE   CONTESTING   OF   WILLS  T3 

a  legatee  does  not  defeat  his  right  to  a  legacy  given  to  him 
by  the  will.*  But  one  accepting  a  benefit  under  a  will  is 
estopped  from  asserting  a  claim  repugnant  to  its  provisions.* 

§  85.  Matters  of  Practice  in  Contest. — The  validity  of  a 
will  may  be  contested  at  the  time  it  is  ofYered  for  probate, 
but  after  it  has  been  admitted  to  probate  the  proceedings  for 
contesting  its  validity  under  the  foregoing  provisions  of  the 
statute  are  matters  of  practice  in  the  circuit  court. 

The  decisions  in  Missouri  have  not  been  uniform  as  to 
the  practice  and  forms  of  procedure  for  contesting  wills. ** 
But  it  is  regarded  as  a  proceeding  at  law,  and  not  in  equity, 
and  persons  interested  in  the  estate  of  the  deceased  must 
be  parties  either  as  plaintiffs  or  defendants.''  The  proceed- 
ing in  the  circuit  court  may  be  considered  as  in  the  nature 
of  an  appeal  from  the  probate  court,  as  the  effect  of  it  is  to 
transfer  the  whole  matter  to  the  circuit  court  for  trial  de 
novo,  and  to  render  void  the  action  of  the  probate  court  in 
relation  to  the  will.^  And  the  probate  court  should  suspend 
the  functions  of  the  executor  and  all  proceedings  under  the 
will  and  appoint  an  administrator  pendente  lite,«  who  has  a 
right,  if  the  probate  court  so  orders  or  the  property  is  need- 
ed to  pay  debts,  to  take  possession  of  the  real  estate,  and 
must  take  charge  of  the  personal  property,  collect  rents,  etc., 
and  preserve  it  for  those  entitled  to  it,  at  the  end  of  the 

787 ;  Norton  v.  Paxton,  110  Mo.  45G,  19  S.  W.  807 ;  Schaff  v.  Peters, 
111  Mo.  App.  447,  00  S.  W.  1037. 

4  State  ex  rel.  Nichols  v.  Adams.  71  Mo.  620;  Good  Samaritan 
Hospital  V.  Mississippi  Trust  Co.,  137  Mo.  App.  185,  117  S.  W.  637 ; 
Stone  V.  Cook,  170  Mo.  534,  78  S.  W.  801,  64  L.  R.  A.  287. 

6  Stone  V.  Cook,  179  Mo.  534,  78  S.  W.  801,  64  L.  R.  A.  287. 

6  Harris  v.  Hays,  53  ]Mo.  90. 

7  Eddie  v.  Parke's  Ex'r.  31  Mo.  513 ;  Garvin's  Adm'r  v.  Williams, 
50  Mo.  206:  Rocers  v.  Dively,  51  Mo.  193;  Young  v.  Ridenbaugb, 
67  Mo.  574 ;  Applebv  v.  Brock,  76  Mo.  314 ;  Wells  v.  Wells,  144  Mo. 
19S  45  S.  W.  1095;  Moore  v.  McNulty,  164  Mo.  Ill,  64  S.  W.  159; 
Gordon  v.  Rurris,  153  Mo.  223.  54  S.  W.  546 ;  Watson  v.  Alder.son. 
146  Mo.  3.33.  48  S.  W.  478,  69  Am.  St.  Rep.  615:  Roberts  v.  Bart- 
lett,  190  Mo.  680,  89  S.  W.  858;  Knapp  v.  St.  Louis  Trust  Co.,  199 
Mo.  640,  98  S.  W.  70 :    Hans  v.  Holler,  165  Mo.  47.  65  S.  W.  308. 

8  Harris  v.  Hays,  53  Mo.  90;  Lamb  v.  Helm.  56  Mo.  420;  Benoist 
V  Murrin  48  Mo.  48 ;  Tinsrley  v.  Cowgill,  48  Mo.  291 ;  State  ex  rel. 
Hamilton  v.  Guinotte,  156  Mo.  513,  57  S.  W.  281.  50  L.  R.  A.  787. 

9  Rogers  v.  Dively.  51  Mo.  193;  Lamb  v.  Helm.  56  Mo.  420:  In 
re  Soulard's  Estate,"  141  Mo.  642,  43  S.  W.  617 ;  State  ex  rel.  Alder- 
son  V.  Moehlenkamp,  133  Mo.  134,  34  S.  W.  468. 


74  THE   CONTESTING   OF   WILLS  §  86 

suit.^°     This  should  be  done  by  the  probate  court  having 
authority  to  i^^rant  general  letters.^-^ 

§  86.  The  Petition. — The  plaintiff  should  file  a  petition, 
as  in  other  cases,  showing  his  interest  in  the  estate,  either 
at  law  or  under  the  will,  and  set  out  names  of  the  legatees, 
devisees,  all  the  heirs  or  other  persons  interested  in  the  es- 
tate, making  them,  together  with  the  executor  or  adminis- 
trator, parties  defendant,  and  state  when  the  will  was  pro- 
bated or  rejected,  and  also  allege  the  grounds  of  objection 
to  the  validity  of  the  will,*  if  the  object  be  to  defeat  it,  or  if 
it  be  to  establish  a  rejected  will,  allege  the  facts  showing 
the  due  execution  of  the  will,  etc.^- 

The  following  forms  of  petition  may  be  readily  modified 
to  meet  any  case: 

Petition  to  Contest  Will 


In  the  Circuit  Court  of Coun- 
ty,   jVIissouri.     Term,    19—. 


S.  S ,  Plaintiff, 

vs. 
(Name  the  executor  and  lega- 
tees or  persons  interested  un- 
der the  will  as  defendants.)  ^ 
S.   S.,  your  petitioner,  states  that  he  is  a  child  and  heir  at  law, 
and  as  such  is  interested  in  the  estate  of  R.  R..  late  of  ,  de- 
ceased;    that  heretofore,  to  wit:    on  the  day  of ,  19 — , 

and  within  five  years  from  this  date,  a  certain  instrument  in  writ- 
ing was  admitted  to  probate  by  the court  of  the  —  coun- 
ty, at  the  ' —  term,  19—,  thereof,  and  adjudged  to  be  the  last 

will  and  testament  of  the  said  R.  R.,  deceased  and  letters  testamenta- 
ry thereon  were,  on  the day  of ,  19 — ,  granted  by  the 

said  court  to  J.  D.,  an  executor  named  in  the  said  supposed 

will;  that  A.  B.,  C.  D.,  etc.,  are  and  were  by  the  said  supposed  will 
made  legatees,  etc.,  (set  out  the  names  of  the  legatees  and  their  in- 

10  In  re  Soulard's  E.state.  141  Mo.  642,  4.3  S.  W.  017;  Union  Trust 
Co.  V.  Soderer,  171  Mo.  G75,  72  S.  W.  499. 

11  State  ex  rel.  Hamilton  v.  Guinotte,  1.56  Mo.  .51.3,  .57  S.  W.  281, 
50  L.  R.  A.  787. 

12  Watson  V.  Alderson,  146  Mo.  .333,  48  S.  W.  478,  69  Am.  St.  Rep. 
615 ;   Barkley  v.  Donnelly,  112  Mo.  561,  19  Mo.  305. 

*  Where  the  contestant  desires  to  set  aside  the  will  on  the 
ground  of  fraud,  the  facts  constituting  the  fraud  must  be  pleaded, 
and,  when  specified,  the  pleader  will  be  held  to  the  precise  specifica- 
tion. Story  V.  Story,  188  Mo.  110,  86  S.  W.  225.  An  allegation  that 
the  testJitor  was  of  unsound  mind  and  had  not  suflicient  understand- 
ing to  comprehend  the  business  in  which  he  was  engaged,  or  who 
were  the  natural  objects  of  his  bounty,  or  what  property  he  had, 
or  what  disposition  he  was  making  of  it,  was  broad  enough  to  admit 
proof  showing  senile  dementia.  Conner  v.  Skaggs,  213  Mo.  334,  111 
S.  W.  11.32. 


§  87  THE    CONTESTING    OF    WILLS  75 

terests  under  the  will  in  the  estate.)  And  the  said  S.  S.  further 
states  that  at  the  time  the  said  supposed  will  was  suijscribed  by  the 
said  K.  K.,  in  his  lifetime,  and  also  at  the  time  tlie  same  was  pub- 
lished and  declared  to  be  his  last  will  and  testament,  the  said  K.  R. 
was  not  of  sound  mind,  but  on  the  contrary  thereof,  was  of  unsound 
mind,  and  wholly  incapable  of  nialdng  a  testamentary  disposition 
of  his  affairs  (or  stale  the  objections  to  the  will);  and  the  said  S.  S. 
pray.s  that  the  probate  of  the  said  supposed  will  may  be  revoked 
and  set  aside,  and  that  said  instrument  be  declared  inoperative  and 
held  for  naujiht,  etc.  S.  S..  Plaintiff. 

By  A.  H.,  his  Att'y. 

S.  S.,  your  petitioner,  states  that  heretofore,  to-wit:    On  or  about 

the day  of ,  19 — ,  one  K.  R.  die<l,  in  the  city  of , 

state  of  .  leaving  survivinR  him  as  his  only  heirs  at  law  his 

children,  the  plaintiff  herein  and  the  defendants  .T.  II.,  A.  B.,  and 

D.  C. ;    that  hereafter  on  or  about  the  day  of  ,  10 — , 

there  was  presented  to  the  probate  court,  in  and  for  the  county  of 

and  state  of  Missouri,  an  instrument  in  writing  purporting 

to  be  the  last  will  and  testament  of  the  said  R.  R. :  that  the  said 
probate  court,  in  the  term,  19 — ,  thereof,  adjudwd  the  said  instru- 
ment in  writing  to  be  the  last  will  and  testament  of  the  said  R.  R., 

deceased,  and  letters  testamentary  thereon  were,  on  the  day 

of  ,  19 — ,  granted  by  the  said  probate  court  to  A.  B.,  an  ex- 
ecutor named  in  the  said  supposed  will ;  that  J.  H.,  A.  B.,  D. 
C,  and  this  petitioner  are  the  only  persons  interested  in  the  result 
of  this  suit  either  as  devisees,  legatees  or  heirs  at  law  of  R.  R., 
deceased,  and  your  petitioner  states  that  the  said  instrument  in 
writing  is  not  the  last  will  and  testament  of  the  said  R.  R.,  deceased, 
but  that  at  the  time  the  said  instrument  in  writing  was  subscribed 
by  the  said  R.  R..  In  his  lifetime,  and  also  at  the  time  the  same  was 
published  and  declared  to  be  his  last  will  and  testament,  the  said 
R.  R.  was  not  of  sound  mind,  but  on  the  contrary  was  of  unsound 
mind,  and  wholly  incapable  of  making  a  testamentary  disposition 
of  his  affairs  (or  state  the  objection  to  the  will). 

Wherefore  your  petitioner  prays  that  an  issue  may  be  made  up 
as  to  whether  the  said  instrument  in  writing,  purporting  to  be  the 
last  will  and  testament  of  the  said  R.  R.,  deceased,  is  his  will  or 
not,  and  that  upon  a  trial  and  hearing  it  may  be  declared  not  to  be 
his  last  will  and  testament,  and  for  .«uch  other  and  further  relief 
and  orders  as  in  the  premises  may  be  deemed  meet  and  proper. 

S.  S.,  Plaintiff, 
By  A.  H.,  his  Attorney. 

§  87,  Issues  to  be  formed  and  submitted. — To  the  peti- 
tion issues  may  be  made  up  and  joined,  as  in  other  cases, 
and  on  the  trial  the  court  must  form  an  issue  for  the  jury, 
like  this :  "Whether  the  writing  produced  be  the  wnll  of  the 
testator  or  not."  "    And  it  is  the  province  of  the  jury  sim- 

isTingley  v.  Cowgill,  4S  Mo.  291;  Cox  v.  Cox,  101  Mo.  168,  13  S. 
W.  1055;  Lilly  v.  Tobbein.  103  Mo.  477.  15  S.  W.  618,  23  Am.  St. 
Rep.  887 ;  Bradford  v.  Blossom.  207  :Mo.  177,  105  S.  W.  289 ;  Holton 
V.  Cochran,  208  Mo.  314,  106  S.  W.  10;?5. 


76  THE    CONTESTING    OF   WILLS  §  88 

ply  to  determine,  under  the  instructions  and  evidence, 
whether  or  not  the  instrument  is  a  valid  will.^*  This  in- 
quiry involves  all  the  essential  requirements  of  a  valid  will 
so  far  as  put  in  issue  by  the  pleadings.  Where  there  is  any 
substantial  evidence  that  the  testator  was  not  of  disposing 
mind  and  memory,  or  that  the  will  was  the  result  of  undue 
influence,  the  case  should  go  to  the  jury.^°  Any  influence, 
however  exercised,  which  amounts  to  overpersuasion,  co- 
ercion or  force,  and  destroys  the  free  agency  and  will  power 
of  the  testator  is  undue  and  wrongful  and  will  defeat  the 
will.^®  The  court  might  also  take  the  opinion  of  the  jury 
on  any  specific  question  of  fact,  but  would  not  be  bound  by 
it,^^  but  the  court  will  not  in  this  proceeding  construe  the 
will  or  determine  whether  its  provisions  are  legal  or  illegal 
nor  try  the  question  of  ademption  of  a  devise  or  the  like.-^^ 

§  88.  Open  and  Close. — The  party  on  whom  the  burden 
of  proof  lies  in  the  first  instance,  should  be  allowed  to  open 
and  close.  When  the  plaintiff  contests  the  validity  of  the 
will,  the  defendants  who  afiirm  its  validity,  are  the  pro- 
ponents, and  must  bring  forward  their  proof,  and  are  en- 
titled to  the  opening  and  close ;  but  when  the  will  has  been 
rejected,  and  the  plaintiff  affirms  and  defendant  denies  its 
validity,  the  plaintiff  is  proponent,  and  is  entitled  to  open 
and  close.^®  It  is  said  to  be  the  proper  course  on  the  trial 
for  the  proponent,  whether  plaintifif  or  defendant,  to  intro- 

KBenoist  v.  Murrin,  58  Mo.  ?,07 ;  Ully  v.  Tobbein,  103  Mo.  477, 
15  S.  W.  G18,  23  Am.  St.  Rep.  887. 

15  Fulbrijjht  v.  Perry  County,  145  Mo.  4.S2,  46  S.  W.  955;  Sehr  v. 
Undemann,  153  Mo.  276,  54  S.  W.  537;  Odenwaelder  v.  Schorr,  8 
Mo.  App.  458;  Goodfellow  v.  Shamion.  197  :Mo.  271,  94  S.  W.  979; 
Teckenbrock  v.  McLaughlin,  209  Mo.  533,  108  S.  W.  46. 

16  Barkley  v.  Barkley  Cemetery  Ass'n,  153  Mo.  300,  54  S.  W.  482; 
Sehr  V.  Lindemann,  153  Mo.  276,  54  S.  W.  537;  Dingman  v.  Romine, 
141  Mo.  466.  42  S,  W.  1087 ;  Riley  v.  Sherwood,  144  Mo.  354,  45  S. 
W.  1077 ;  Defoe  v.  Defoe,  144  Mo.  458,  46  S.  W.  433 ;  West  v.  West, 
144  Mo.  119,  46  S.  W.  139;  McFadin  v.  Catron,  138  Mo.  197,  38  S. 
W.  9.32,  .39  S.  W.  771;  Aylward  v.  Briggs,  145  Mo.  604,  47  S.  W.  510; 
Dausman  v.  Rankin,  189  Mo.  677,  88  S.  W.  696,  107  Am.  St.  Rep. 
391;   Mowry  v.  Norman,  204  Mo.  173,  103  S.  W.  15. 

17  Boyer  v.  Dively,  58  Mo.  510. 

18  Lilly  V.  Tobbein,  103  Mo.  477,  15  S.  W.  618,  23  Am.  St.  Rep.  887; 
Owens  V.  Sinklear,  110  Mo.  54,  19  S.  W.  813. 

18  Porter  v.  .Tones,  .52  Mo.  .399;  Harvey  v.  Sullen's  Heirs,  56  Mo. 
372;  Benoist  v.  Murrin,  .58  Mo.  .307;  Tingley  v.  Cowgill.  48  Mo.  291 
(contra);  Morton  v.  Heidorn,  1.35  Mo.  608.  37  S.  W.  504;  Tecken- 
brock  V.  McLaughlin,  209  Mo.  5.33,  108  S.  W.  46. 


§  88  THE    CONTESTING   OF    WILLS  77 

duce  the  subscribin.c^  witnesses,  or  in  case  of  their  death, 
proof  of  their  handwritiiiii:,  and  establish  by  them  the  execu- 
tion and  attestation  of  the  will,  and  the  age  and  sanity  of 
the  testator,  which  makes  a  prima  facie  case,  and  the  bur- 
den of  establishing  incompetency  or  undue  influence,  or  oth- 
er objection  to  the  will,  then  rests  on  the  objectors  or  op- 
ponents of  the  will.-"  Rebutting  testimony  may  be  given  by 
the  parties.-^  If  there  be  no  evidence  to  support  the  grounds 
upon  which  the  will  is  contested,  the  court  may  so  declare, 
and  direct  a  verdict  accordingly.^^  If  any  subscribing  wit- 
ness be  dead  or  cannot  be  found,  the  oath  of  such  witness, 
examined  at  the  time  of  probate,  will  be  admitted  as  evi- 
dence, and  have  such  weight  as  the  court  or  jury  think  it 
deserves.- '  Beneficiaries  under  the  will  are  competent  wit- 
nesses in  establishing  it.--*  The  order  and  judgment  of  the 
circuit  court  should  either  establish  or  reject  the  will.-' 
But  the  record  entry  of  the  verdict  of  the  jury  is  a  sufficient- 
ly formal  judgment  to  establish  the  will.-'"' 

20  llari-LS  V.  Hays,  5:5  Mo.  90;  McFadin  v.  Catron,  138  Mo.  197,  38 
S.  W.  9:52,  39  S.  W.  771 ;  Fulbrijjcbt  v.  Perry  County,  145  Mo.  432, 
46  S.  W.  955;  McFadin  v.  Catron.  120  Mo.  2.52,  25  S.  W.  506;  Carl 
V.  Gabel,  120  Mo.  283,  25  S.  W.  214;  Maddox  v.  Maddox,  114  Mo.  35, 
21  S.  W.  499,  35  Am.  St.  Kep.  734  ;  Selir  v.  Lindemaun,  153  Mo.  276, 
54  S.  W.  537;  Campbell  v.  Carlisle,  162  Mo.  6.34,  63  S.  W.  701  ;  Scbier- 
baum  V.  Sdiemme.  157  Mo.  1.  57  S.  W.  526,  SO  Am.  St.  Kep.  604; 
Kinj:  V.  Gilson,  20<)  Mo.  264,  104  S.  W.  52. 

21  Rankin  v.  liankin.  (il  Mo.  295;    T.amb  v.  Helm,  56  Mo.  420. 

22  Hambin-j:er  v.  Rinkt>l.  164  Mo.  398,  64  S.  W.  104;  We.st  v.  West, 
144  Mo.  119.  4(')  S.  W.  1.39;  Cash  v.  Lust,  142  Mo.  630.  44  S.  W.  724, 
64  Am.  St.  Rep.  576. 

2.-5  Rev.  St.  1909,  §  558;  Bridwell  v.  Swank.  84  Mo.  455;  Muller  v. 
St.  Louis  Hospital  Ass'n,  73  Mo.  242. 

24  Gamache  v.  Gambs.  52  Mo.  287;  Garvin's  Adm'r  v.  Williams,  50 
Mo.  206. 

2  5  Harris  v.  Hays,  53  Mo.  90;  Watson  v.  Alderson,  146  Mo.  333, 
48  S.  W.  478,  69  Am.  St.  Rep.  615;  Cash  v.  Lust,  142  Mo.  630,  44 
S.  W.  724,  64  Am.  St.  Rep.  576. 

2  6  Gordon  v.  Burris,  141  Mo.  602,  43  S.  W.  642. 


78  THE   CONSTRUCTION   OF   WILLS  §  89 

CHAPTER  XI 
OF  THE  CONSTRUCTION  OF  WILLS 

§  S9.  Authority  of  adjudged  cases. 

90.  General  rules  of  construction. 

Dl.  Words  which  pass  a  fee. 

92.  Estate  for  life  or  less. 

93.  Personal  effects — Residue — After  acquired  estate. 

94.  Description  of  devisee  or  legatee. 

95.  Same — "Children,"  how  construed. 

96.  Same — Other  relations  how  named.   "Heirs,"  "Next  of  Kin," 

"Cousins,"  etc. 

97.  Same — "Family,"  "Legal  Representatives,"  etc. 

98.  Ambiguity,  uncertainty  of  description  of  legatee. 

99.  Interlineations  or  erasures. 

100.  Remainders — Lapsed  legacies, 

101.  Same — May  lapse  when. 

102.  Contributions  by  devisees  and  legatees. 

103.  Lineal  and  collateral  warranties. 

§  89.  Authority  of  adjudged  cases. — Chancellor  Kent 
says,  the  construction  of  wills  is  so  much  governed  by  the 
language,  arrangement  and  circumstances  of  each  particular 
instrument,  which  is  usually  very  unskillfully  and  very  in- 
coherently drawn,  that  adjudged  cases  become  of  less  author- 
ity and  are  of  more  hazardous  application,  than  decisions  upon 
any  other  branch  of  the  law.^  Such  being  the  case  we  shall 
not  attempt  a  reference  to  any  considerable  number  of  judicial 
decisions  bearing  upon  the  construction  of  wills  and  legacies. 
There  are,  however,  some  general  rules  of  construction  ap- 
plicable to  wills,  which  have  been  adopted  by  text  writers  as 
elementary  principles,  and  seem  to  be  well  sustained  by  the 
weight  of  the  authorities  both  in  England  and  in  this  country. 

§  90.  General  Rules  of  Construction. — We  give  the  fol- 
lowing, taken  principally  from  Jarman  on  Wills: 

1.  A  will  must  be  construed  according  to  the  law  in  force 
when  the  testator  died.^  The  authorities  are  conflicting  upon 
this   point. 

1  4  Kent,  Com.  564 ;  Garth  v.  Garth,  139  Mo.  456,  41  S.  W.  238 ; 
Armor  v.  Frey,  226  Mo.  646,  126  S.  W.  483. 

2  Red  field  on  Wills,  406,  407.  408,  note;  Watson  v.  Alderson.  146 
Mo.  333,  48  S.  W.  478,  69  Am.  St.  Rep.  615 ;  Thomas  v.  Thomas,  149 
Mo.  426,  51  S.  W^  111,  73  Am.  St.  Rep.  405. 


§  90  THE   CONSTRUCTION   OF   WILLS  79 

2.  A  will  of  real  estate  must  be  construed  according  to  the 
law  of  the  country  or  state  where  the  jjroperty  upon  which  it 
is  intended  to  operate  is  situated,''  but  a  will  of  personalty  is 
governed  by  the  lex  domicilii,  or  law  of  the  place  where  the 
will  is  made.* 

3.  The  construction  of  a  will  is  the  same  at  law  and  in 
equity.  The  rule  for  construini^  wills  and  deeds  is  substantial- 
ly the  same.^ 

4.  A  will  speaks  for  some  purposes  from  the  period  of  ex- 
ecution, and  for  others  from  the  death  of  the  testator ;  but 
never  operates  until  the  latter  period.  It  speaks  from  his 
death  unless  by  a  fair  construction  its  language  indicates  a 
contrary  intention." 

5.  An  heir  is  not  to  be  disinherited  without  an  express  de- 
vise, or  necessary  implication ;  such  implication  importing  not 
natural  necessity,  but  so  strong  a  probability  that  an  intention 
to  the  contrary  cannot  be  supposed.'^ 

6.  Mere  negative  words  are  not  sufficient  to  exclude  the 
title  of  the  heir  or  next  of  kin.  There  must  be  an  actual  gift 
to  some  definite  object.^ 

7.  The  intention  of  the  testator  must  control,  unless  it  con- 
flicts with  the  rules  of  law."  This  intention  must  be  collected 
from  the  will  itself;  not  from  any  particular  clause,  but  from 
the  whole  will  taken  together  ^^  and  parol  evidence  is  not  ad- 

3  Rev.  St.  1909.  §  567 ;  Nat  v.  Coons.  10  Mo.  543 ;  Cabanne  v. 
Sldnker,  56  Mo.  ;;57 :  Stevens  v.  Oliver,  200  Uo.  492,  98  S.  ^y.  492 ; 
Stewart  v.  Pettus,  10  Mo.  755. 

4  Hev.   St.  1909.  §  567. 

5  Walton  V.  Drnnitra.  152  Mo.  4S9.  54  S.  W.  2.33  ;  Peter  v.  Byrne, 
175  Mo.  2,33,  75  S.  W.  4.33,  97  Am.  St.  Rep.  576 ;  State  ex  rel.  Scott 
V.  f.ichte,  226  Mo.  273,  126  S.  W.  466. 

6  Watson  V.  Alderson,  146  Mo.  333.  48  S.  W.  478.  69  Am.  St.  Rep. 
615:  Webb  v.  Archibald.  128  Mo.  299.  .34  S.  W.  54;  Cox  v.  Joue.s, 
229  Mo.  53,  129  S.  W.  495;    Vitt  v.  Clark,  66  Mo.  App.  214. 

7  Bender  v.  Dietrick,  7  Watts  &  S.  284;  Hasenritter  v.  Ilasenrit- 
ter.  77  Mo.  162. 

8  Hurst  v.  Von  de  Veld.  1.58  Mo.  2.39.  58  S.  W.  10.56;  Willard  v. 
Darrah,  168  Mo.  660,  68  S.  W.  1023,  90  Am.  St.  Rep.  468. 

0  Harbison  v.  Swan,  58  Mo.  147;  Briant  v.  (Jarrison,  150  Mo.  6.55, 
52  S.  W.  361 ;  Walton  v.  Drumtra.  152  Mo.  489,  54  S.  W.  233 ;  Grace 
V.  Perry.  197  Mo.  550,  95  S.  W.  875.  7  Ann.  Cas.  948;  Dickersou  v. 
Dickerson.  211  Mo.  483,  110  S.  W.  700. 

10  Alexander  v.  Alexander.  156  Mo.  413.  57  S.  W.  110:  Turner  v. 
Tiniberlake,  53  Mo.  371  :  Allison  v.  Chaney.  63  Mo.  279 :  Schoeneich 
v.  Field,  73  Mo.  App.  452 :  Thomas  v.  Thomas,  149  Mo.  426,  51  S.  W. 
Ill,   73  Am.   St.  Rep.  405;    Cross  v.  Hoch,  149  Mo.  325,  50  S.  W. 


80  THE  CONSTRUCTION   OF  WILU3  §  90 

missible  to  explain,  vary  or  enlarge  the  words  of  the  will,  ex- 
cept in  the  case  of  a  latent  ambiguity. ^^  A  misdescription  of 
property  may  be  corrected  by  extrinsic  evidence. ^- 

8.  Technical  words  are  not  necessary  to  give  efifect  to  any 
species  of  disposition' in  a  will ;  that  is,  no  particular  words  are 
necessary  to  pass  an  estate,  but  any  words  that  show  the  in- 
tention of  the  testator  are  sufficient. 

9.  Courts  will  look  at  the  circumstances  under  which  the 
testator  makes  his  will,  as  the  state  of  his  property,  his  family 
and  affairs,  and  the  like,^-''  and  will  examine  all  the  different 
parts  of  a  will,  and  give  each  clause  its  proper  force,^*  and 
one  clause  may  qualify  another  and  bring  it  in  harmony  with 
the  general  intention.^ ^ 

10.  In  general,  implication  is  admissible  only  in  the  ab- 
sence of,  and  not  to  control,  an  express  disposition.  Nor  can 
an  express  and  positive  devise  be  controlled  by  the  reason  as- 
signed, or  by  subsequent  ambiguous  words,  or  by  influence 

786 ;  Clotilde  v.  Lutz,  157  Mo.  439,  57  S.  W.  1018,  50  L.  R.  A.  847 ; 
Oldham  v.  Trimble,  15  Mo.  2:50;  Meiners  v.  Meiners,  179  Mo.  614,  78 
S.  W.  795 :  Brooks  v.  Brooks,  187  Mo.  476,  86  S.  W.  158 ;  O'Day  v. 
O'Day,  193  Mo.  62,  91  S.  W.  921,  4  L,  R.  A.  (N.  S.)  922;  Metz  v. 
Wright.  116  Mo.  App.  631,  92  S.  W.  1125 ;  Cox  v.  Jones,  229  Mo.  53, 
129  S.  W.  495. 

11  Garth  v.  Garth,  139  Mo.  456,  41  S.  W.  2.38;  Rothwell  v.  Jami- 
son, 147  Mo.  601,  49  S.  W.  503;  Sanitarium  v.  McCune,  112  Mo. 
App.  .332,  87  S.  W.  93 ;  Davis  v.  Davis,  8  Mo.  56 ;  Krechter  v.  Grofe, 
166  Mo.  385,  66  S.  W.  358 ;  Roberts  v.  Grume,  173  Mo.  572,  73  S.  W. 
662. 

12  Creasy  v.  Alverson,  43  Mo.  13;  Riggs  v.  Myers,  20  Mo.  239; 
Thomson  v.  Thomson,  115  Mo.  56,  21  S.  W.  1085;  Paulas  v.  Besch, 
127  Mo.  App.  255,  104  S.  W.  1149. 

13  McMillan  v.  Farrow,  141  Mo.  55,  41  S.  W.  890;  Rothwell  v. 
Jamison.  147  Mo.  601,  49  S.  W.  503 ;  Nichols  v.  Boswell,  103  Mo.  151, 
15  S.  W.  .343;  Mueller  v.  Buenger,  184  Mo.  458.  83  S.  W.  458.  67 
L.  R.  A.  648,  105  Am.  St.  Rep.  541 ;  Grace  v.  Perry,  197  Mo.  550,  95 
S.  W.  875,  7  Ann.  Gas.  948;  Sinnnons  v.  Cabanne,  177  Mo.  .336,  76 
S.  W.  618;  Board  of  Trustees  of  Methodist  Episcopal  Church  v. 
May,  201  Mo.  360,  99  S.  W.  1093. 

14  Gaines  v.  Fender,  57  Mo.  342 ;  Garth  v.  Garth,  139  Mo.  456,  41 
S.  W.  238 ;  Brooks  v.  Brooks,  187  Mo.  476,  86  S.  W.  158 ;  O'Day  v. 
O'Day,  193  Mo.  62.  91  S.  W.  921,  4  L.  R.  A.  (N.  S.)  922;  Dickerson 
V.  Dickerson,  211  Mo.  483,  110  S.  W.  700;  Cox  v.  Jones,  229  Mo.  53, 
129  S.  W.  495. 

15  Carr  v.  Dings,  58  Mo.  400;  Carter  v.  Alexander,  71  Mo.  585; 
Walton  V.  Drumtra.  152  Mo.  489,  54  S.  W.  233;  Mersman  v.  Mers- 
man,  136  Mo.  244,  37  S.  W.  909;  Meiners  v.  Meiners,  179  Mo.  614, 
78  S.  W.  795. 


§  90  THE    CONSTRUCTION    OF    WILLS  81 

and  argument  from  other  parts  of  the  will ;  and  accordingly 
such  a  devise  is  not  affected  by  a  subsequent  inaccurate  re- 
cital of,  or  reference  to  its  contents/"  though  recourse  may 
be  had  to  such  reference  to  assist  the  construction,  in  case 
of  ambiguity  or  doubt. 

11.  The  inconvenience  or  absurdity  of  a  devise  is  no  ground 
for  varying  the  construction,  where  the  terms  are  unambigu- 
ous. 

12.  That  favor,  or  disfavor  to  the  object,  ought  not  to  in- 
fluence the  construction. 

13.  The  rules  of  construction  cannot  be  strained  to  bring  a 
devise  within  the  rules  of  law; ''  but  where  the  will  admits  of 
two  modes  of  construction,  that  is  to  be  preferred  which  will 
render  it  valid  and  prevent  a  total  intestacy.'** 

14.  In  general,  words  are  to  be  taken  in  their  ordinary  and 
grammatical  sense,  unless  a  clear  intention  to  use  them  in  an- 
other can  be  collected  or  ascertained  from  the  will  itself,'*  and 
they  are  in  all  cases  to  receive  the  construction,  which  will  give 
to  every  expression  some  effect,  rather  than  one  that  will  ren- 
der any  of  the  expressions  inoperative.- ° 

15.  Where  a  testator  uses  technical  words,  he  is  presumed 
to  employ  them  in  their  legal  sense,  unless  the  context  clearly 
indicates  the  contrary.-' 

16.  Words  occurring  more  than  once  in  a  will,  are  pre- 
sumed to  be  used  always  in  the  same  sense,  unless  a  contrary 
intention  appear  by  the  context,  or  unless  the  words  be  applied 
to  a  different  subject.    And,  on  the  other  hand,  where  a  testa- 

10  Brooks  V.  Brooks.  187  Mo.  476.  S6  S.  W.  158:  Sevier  v.  Wood- 
son, 20.5  Mo.  202.  104  S.  W.  1,  120  Am.  St.  Rep.  728 ;  Settles  v.  Shaf- 
er  22!)  Mo.  .501.  129  S.  W.  897  :  .Tackson  v.  T.ittell.  2i:i  Mo.  589.  112 
S    W  53;   Tisdale  v.  Prather,  210  Mo.  402.  109  S.  W.  41. 

17  Shepperd  v.  Fisher.  206  Mo.  208.  103  S.  W.  989:  Sevier  v.  Wood- 
son. 205  Mo.  202.  104  S.  W.  1,  120  Am.  St.  Rep.  728 :  Co.K  v.  Jones, 
229  Mo.  53,  129  S.  W.  49.5. 

isiio  Kards  v.  Brown,  167  Mo.  447,  67  S.  W.  245:  Sheppevd  v. 
Fisher.  206  Mo.  208.  103  S.  W.  989;  Young  v.  Rohinsoii,  122  Mo. 
App.  187.  99  S.  W.  20. 

loT^ieiners  v.  Meiners.  179  Mo.  614,  78  S.  W.  795;  Sanitarium  v. 
McCune.  112  Mo.  App.  332,  87  S.  W.  93. 

2oreters  v.  Carr.  16  Mo.  54:  Garth  v.  Garth,  139  Mo.  4o6.  41  S. 
W.  2.38:  Cross  v.  Hoch.  149  Mo.  325.  50  S.  W.  786:  Briant  v.  Gar- 
rison. 150  Mo.  655,  52  S.  W.  361. 

21  Drake  v.  Crane,  127  Mo.  85,  29  S.  W.  990.  27  L.  R.  A.  653 ;  Cross 
V.  Hoch.  149  Mo.  325,  50  S.  W.  786;  Zook  v.  Welty,  156  Mo.  App. 
703,  137  S.  W.  989. 

Kel.Mo.P.G.— 6 


S2  THE    CONSTRUCTION    OF   WILLS  §  9(J 

tor  uses  an  additional  word  or  phrase,  he  must  be  presumed  to 
have  an  additional  meaning.* 

17.  Words  and  limitations  may  be  transposed,  supplied  or 
rejected,  where  warranted  by  the  immediate  context,  or  the 
general  scheme  of  the  will;  but  not  merely  on  a  conjectural 
hypothesis  of  the  testator's  intention,  however  reasonable,  in 
opposition  to  the  plain  and  obvious  sense  of  the  language  of 
the  instrument. '" 

18.  Words  which  it  is  obvious  are  mis-written  (as  dying 
with  issue  for  dying  without  issue),  may  be  corrected  by  con- 
struction. 

19.  The  construction  is  not  to  be  varied  by  events  subse- 
quent to  the  execution;  but  the  courts  in  determining  the 
meaning  of  particular  expressions,  will  look  to  possible  cir- 
cumstances, in  which  they  might  have  been  called  upon  to  afiix 
a  signification  to  them. 

20.  Several  independent  devises,  not  grammatically  con- 
nected, or  united  by  the  expression  of  a  common  purpose,  must 
be  construed  separately,  and  without  relation  to  each  other; 
although  it  may  be  conjectured,  from  similarity  of  relation- 
ship, or  other  such  circumstances,  that  the  testator  had  the 
same  intention  in  regard  to  both.  There  must  be  an  apparent 
design  to  connect  them.  This  relates  chiefly  to  the  question, 
whether  words  of  limitation  preceded  by  several  devises  relate 
to  more  than  one  of  those  devises. 

21.  That  where  a  testator's  intention  cannot  operate  to  its 
full  extent,  it  shall  take  effect  as  far  as  possible. 

22.  That  a  testator  is  rather  to  be  presumed  to  calculate  on 
the  dispositions  in  his  will  taking  effect  than  the  contrary ;  and 
accordingly  a  provision  for  the  death  of  a  devisee  will  not  be 
considered  as  intended  to  provide  exclusively  for  lapse,  if  it 
admits  of  any  other  construction. 

2  2  Briant  v.  Garrison,  150  Mo.  655,  52  S.  W.  361 ;  Nichols  v.  Bos- 
well,  103  Mo.  151,  15  S.  W.  343 ;  Tliomson  v.  Thomson,  115  Mo.  56, 
21  S.  W.  1085;  Simmons  v.  Cabanne,  177  Mo.  ;^.36,  76  S.  W.  «>1S ; 
Ro  Bards  v.  Brown,  167  Mo.  447,  67  S.  W.  245 ;  Board  of  Trustees 
of  Methodist  Episcopal  Church  v.  May,  201  Mo.  360,  99  S.  W.  1093. 


*  It  is  only  where  inconsistencies  or  ambiguities  appear  in  the 
langnapce  used  in  the  will  such  as  to  cast  doubt  on  the  intention  of 
the  testator  that  surrounding  circumstances  can  be  considered  to 
determine  what  that  intention  really  was.  Sanitarium  v.  MeCune, 
112  Mo.  App.  332,  87  S.  W.  93 ;  Brown  v.  Tuschoff,  235  :\Io.  449,  138 
S.  \V.  497;   Krechter  v.  Grofe,  166  Mo.  385,  66  S.  W.  358. 


§  91  THE    CONSTRUCTION    OF    WILLS  83 

23.  A  sub^ctiucnt  clause  apparently  irreconcilable  with  pre- 
cedent provisions,  will  be  construed  in  connection  with  them, 
but  must  be  rejected  if  repugnant  to  the  intention  of  the  testa- 
tor, as  derived  from  the  whole  will."^ 

24.  A  will  and  codicil  thereto  must  be  construed  together 
as  parts  of  one  and  the  same  instrument.-^ 

In  doubtful  cases  the  intention  of  the  testator  can  be  best 
ascertained  by  the  courts,  and  those  interested  in  the  construc- 
tion of  wills,  by  putting  themselves,  so  far  as  may  be  in  the 
place  of  the  testator  and  reading  the  whole  will  in  the  light 
of  his  surroundings  at  the  time  it  was  made,  and  when  his  in- 
tention and  meaning  can  be  thus  clearly  ascertained  all  tech- 
nical rules  and  decisions  in  other  jurisdictions  which  stand  in 
the  way  of  its  proper  interpretation  should  be  disregarded.-"' 

§  91.  Words  which  Pass  a  Fee. — Formerly,  in  wills  of 
real  estate,  if  the  devise  contained  no  words  of  limitation  or 
perpetuity,  the  devisee  took  only  a  life  estate.  But  in  order  to 
carry  out  the  intention  of  the  testator,  which  is  regarded  as 
the  polar  star  in  the  construction  of  wills,  courts  will  seize  upon 
any  general  expression  of  a  grant  as  afifording  evidence  that  a 
fee  was  intended.  Thus,  the  words,  "estate,"  "property," 
"land,"  "all  my  landed  property,"  "all  the  estate  called,"  "es- 
tate, real,  personal  and  mixed,"  "all  real  estate,"  "parcel  of 
land  called,"  "all  my  other  property,"  "all  my  lots,"  "residue,"' 
"all  my  real  estate,"  "to  my  wife,  to  be  at  her  entire  disposal." 
"the  tract  of  land  on  which  I  now  reside,"  and  innumerable 
words  and  phrases  of  similar  import,  have  been  held  to  pass 
real  estate  in  fee  simple  to  the  devisee.-*' 

To  avoid  all  controversy  with  respect  to  words  necessary  to 
pass  a  fee,  it  is  enacted  by  the  statute  of  Missouri  that  in  all 

2:!  2  Kedtiold  on  Wills.  277;  Sevier  v.  WcHtdson.  20.1  Mo.  202,  104 
S.  \V.  1,  120  Am.  St.  Kep.  728;  Brooks  v.  Brooks,  1N7  Mo.  470,  SG 
s!  AV.  iks:  Jjickson  v.  IJttell,  213  Mo.  589,  112  S.  W.  515.  127  Am. 
St.  Rep.  (520;  (Juiinon  v.  Albright,  183  Mo.  2.52,  81  S.  W.  1102,  «i7 
L,  R.  A.  97,  105  Am.  St.  Rep.  471. 

2  4  Rev.  St.  1909,  S  580;  Von  I'luil  v.  Hay,  122  Mo.  300,  20  S.  W. 
965;    Brooks  v.  Brooks,  187  Mo.  470,  80  S.  W.  158. 

-•5  Murphy  v.  Carlin,  li:'.  Mo.  112,  20  S.  W.  780,  35  Am.  St.  Rep. 
099;  Lonj;  v.  Timms,  107  Mo.  512.  17  S.  W.  898:  Nichols  v.  Bos- 
well,  103  Mo.  151,  15  S.  W.  343;  Whitelaw  v.  Rodney.  212  Mo.  540, 
111  S.  W.  560;  Clotilde  v.  T.utz.  157  Mo.  4:'.9.  57  S.  W.  lOls.  50  L. 
R.  A.  847. 

26  Ante,  §  20;  Shumate  v.  Bailey.  110  Mo.  411,  20  S.  W.  17^; 
Guy  V.  Mayes,  235  Mo.  390,  138  S.  W.  510. 


84  THE   CONSTRUCTION   OP   WILLS  §  91 

devises  of  lands  or  other  estate  in  which  the  words,  "heirs  and 
assigns"  or  "heirs  and  assigns  forever,"  are  omitted,  and  no 
expressions  are  contained  in  the  will  whereby  it  shall  appear 
that  such  devise  was  intended  to  convey  an  estate  for  life  only, 
and  no  further  devise  be  made  of  the  devised  premises,  to  take 
effect  after  the  death  of  the  devisee  to  whom  the  same  shall 
be  given,  it  shall  be  understood  to  be  the  intention  of  the  testa- 
tor thereby  to  devise  an  absolute  estate  in  the  same,  and  shall 
convey  an  estate  in  fee  simple  to  the  devisee  for  all  such  de- 
vised premises.^'''  And  a  devise  of  the  perpetual  income  of 
real  estate  is  a  devise  of  the  fee,  and  a  gift  of  the  income  for 
life  passes  a  life  estate,  and  the  same  rule  applies  to  personal 
estate. ^^  A  devise  with  an  absolute  power  of  disposal  in  the 
first  taker  renders  a  subsequent  limitation  repugnant  and 
void.^®  So  where  a  condition  subsequent  is  attached  to  a  be- 
quest, and  its  performance  becomes  impossible  by  the  act  of 
God,  the  devisee  or  legatee  will  take  unconditionally.^"  A  de- 
vise of  real  estate,  upon  condition  that  the  devisee  should  not 
sell  or  incumber  it,  passes  a  fee,  the  condition  being  void  as 
repugnant  to  the  devise,  and  against  public  policy.^ ^  The  right 
and  power  of  alienation  is  a  necessary  and  inseparable  inci- 
dent to  the  ownership  of  land  in  fee.^-  But  a  devise  to  a  trus- 
tee may  give  the  income  to  the  beneficiary  and  prohibit  his 
alienation  of  it  and  its  seizure  by  his  creditors  in  anticipation/'^ 

2  7  Rev.  St.  1909,  §§  579,  2870;  Bradstreet  v.  Kinsella,  76  Mo.  G3; 
Hunter  v.  Patterson,  142  Mo.  :?10,  44  S.  W.  2.^0;  Yocum  v.  Siler, 
160  Mo.  281,  61  S.  W.  208;  Simmons  v.  Cabanne,  177  Mo.  3.36.  76 
S.  W.  618;  Roth  v.  Rauschenbusch,  173  Mo.  582,  73  S.  W.  664,  61 
L.  R.  A.  455. 

2  8  Collier  v.  Grimesej',  .36  Ohio  St.  17. 

20  Green  v.  Sutton,  50  Mo.  186;  Tremmel  v.  Kleiboldt,  75  Mo.  255; 
Rubey  v.  Barnett,  12  Mo.  5,  49  Am.  Dec.  112;  Small  v.  Field.  102 
Mo.  127,  14  S.  W.  815;  Roberts  v.  Crume,  173  Mo.  loc.  cit.  580,  73 
S.  W.  662;  Settle  v.  Shafer,  229  Mo.  561,  129  S.  W.  S97 ;  Cox  v. 
Jones.  229  Mo.  53,  129  S.  W.  495. 

3  0  Hammond  v.  Hammond,   55  Md.  575. 

314  Kent's  Commentaries,  p.  131;  Anderson  v.  Gary,  36  Ohio  St. 
506,  38  Am.  Rep.  602 ;  Haeussler  v.  Missouri  Iron  Co.,  110  Mo.  188, 
19  S.  W.  75,  16  L.  R.  A.  220,  .33  Am.  St.  Rep.  431;  McUvaine  v. 
Smith,  42  Mo.  45,  97  Am.  Deo.  295;  Peuiejnet  v.  Berthold,  183  Mo. 
61,  81  S.  W.  874 ;  Wool  v.  Fleetwood,  136  N.  C.  460.  48  S.  E.  785,  07 
L.  R.  A.  444;    Gannon  v.  Pauk,  200  Mo.  87,  98  S.  W.  471. 

32  Weatherford  v.  King,  110  Mo.  51,  24  U.  W.  772;  Pratt  v.  Saline 
Valley  R.  Co.,  1.30  Mo.  App.  175,  108  S.  W.  1099. 

3  3  Broadway  Nat.  Bank  v.  Adams,  133  Mass.  170,  43  Am.  Rep. 
504 ;  Montague  v.  Crane,  12  Mo.  App.  582 ;  Schoeneich  v.  Field,  73 
Mo.  App.  452;    Jarboe  v.  Hey,  122  Mo.  .341,  26  S.  W.  968. 


§  92  THE   CONSTRUCTION   OF   WILLS  85 

A  devise  by  a  husband  to  a  wife,  "if  she  shall  not  marry 
af^ain,"  is  valid.  The  rule  that  a  devise  in  restraint  of  mar- 
riage is  void,  does  not  apply  to  second  marriages.-'*  * 

§  92.  Estate  for  Life  or  Less. — According  to  the  rule  in 
Shelley's  case,  a  devise  to  a  person  for  life,' with  remainder 
over  to  his  or  her  heirs  generally,  vested  a  fee  in  the  devisee; 
the  limitation  over  being  void,  the  heirs  of  the  devisee  took  by 
descent  and  not  by  purchase.^''  And  where  the  devise  was  to 
A.  and  the  heirs  of  her  body,  she  took  a  life  estate  at  common 
law  and  the  estate  tail  or  remainder  went  to  the  first  or  oldest 
child  and  not  to  all  the  children.-'*'  But  such  is  not  the  law  in 
Missouri.  A  devise  by  will,  of  real  estate  to  any  person  for 
life,  and  after  his  or  her  death  to  his  or  her  children  or  heirs, 
or  right  heirs,  in  fee,  vests  an  estate  for  life  only  in  such  dev- 
isee, and  remainder  in  fee  simple  in  such  children."  And  a 
life  estate  may  be  created  in  direct  terms  or  by  necessary  im- 
plication from  the  terms  of  the  grant.^^  "So  when  land  is 
conveyed"  to  A.  and  "to  the  heirs  of  his  body  forever,"  or  "to 
have  and  to  hold  the  same  to  her  and  her  children,  heirs  of 

84  Walsh  V.  Mathews,  11  Mo.  131;  Diinioy  v.  Schoeffler,  24  Mo. 
170  00  Vm  Deo.  422;  Gaven  v.  Allen,  100  Mo.  29.3,  13  S.  W.  oOl : 
Chrisuum  v.  Liudernian,  202  Mo.,  loo.  cit.  623,  100  S.  W.  1090,  10 
L.  R.  A.  (X.  S.)  120.1.  119  Am.  St.  Rep.  822. 

sr.Riijsins  V.  MoClellan,  28  Mo.  23:  Tesson  v.  Newman,  G2  Mo. 
198 ;  Gannon  v.  Albright,  183  Mo.  238.  81  S.  W.  1162,  67  D.  R.  A. 
97.  105  Am.  St.  Rep.  471 ;    Muldrow  v.  White.  67  Mo.  470. 

3(5  Frame  v.  Humphreys,  164  Mo.  336,  64  S.  W.  116. 

37  Rev.  St.  1909,  §  578;  Gregory  v.  Cowgill,  19  Mo.  415;  Jones  v. 
Waters,  17  Mo.  587;  Reinders  v.  Koppelmann,  68  Mo.  482,  30  Am. 
Rep.  802 ;    Cross  v.  Hoch,  149  :Mo.  341,  50  S.  W.  786. 

3  8  Cross  V.  Hoch.  149  Mo.  325,  50  S.  W.  786;  Harbison  v.  James, 
90  Mo.  411,  2  S.  W.  292;  Russell  v.  Eubanks,  84  Mo.  82;  Bean  v. 
Kenmuir,  86  Mo.  666;  Lewis  v.  Pitman.  101  Mo.  281,  14  S.  W.  52; 
Schorr  v.  Carter,  120  Mo.  409.  25  S.  W.  538:  Talbott  v.  Hamill.  151 
Mo.  292,  52  S.  W.  203;  Dozier  v.  Dozier,  183  Mo.  137,  81  S.  W.  890; 
Pratt  v!  Saline  Valley  R.  Co.,  130  Mo.  App.  175,  108  S.  W.  1099. 

*  The  Supreme  Court  of  Missouri,  in  an  opinion  by  Judge  Lamm, 
while  upholding  such  provi.-^ions  when  the  restraint  is  placed  ui)on 
the  widow's  remarriage,  does  not  believe  a  Uke  restriction  can  be 
placed  upon  the  widower  by  his  deceased  wife.  (2  Pomeroy.  Eq. 
Juris.  [3d  Ed.]  933,  is  cited.)  Knost  v.  Knost.  229  Mo.  170.  129 
S.  "NV.  665.  In  the  case  of  Sullivan  v.  Garesche.  229  Mo.  496,  129  S. 
AY.  949.  a  provision  in  a  will  giving  a  preference  to  two  of  testa- 
trix's daughters  over  her  other  two  children,  which  was  to  be  for- 
feited if  they  married,  was  held  to  be  void,  as  in  restraint  of  mar- 
riage. 


86  THE    CONSTRUCTION    OF   WILLS  §  92 

her  body  forever"  passes  a  life  estate  to  the  mother;^''  but 
where  the  mother  by  holographic  will  bequeathed  to  her  daugh- 
ter "all  the  rest  of  her  real  and  personal  estate  for  the  sole  use 
of  herself  and  children,"  the  daughter  takes  the  fee  in  the 
land ;  the  words,  "for  the  sole  use  of  herself  and  children"  do 
not  create  a  trust  nor  invest  in  the  children  a  remainder.*'* 

The  introductory  clause  of  a  will,  though  often  words  of 
course,  may  be  very  useful  in  discovering  the  intention  of  the 
testator  as  to  the  quantum  of  the  estate  devised.*^  Words 
of  general  intent  in  the  introduction,  cannot  affect  the  words 
of  a  specific  devise,  but  only  aid  the  construction  where  the 
words  are  doubtful.  And  to  vary  the  construction  so  as  to 
enlarge  the  estate  into  a  fee,  they  should  be  in  some  way  con- 
nected in  the  body  of  the  instrument,  or  otherwise,  with  the 
more  important  devising  clause.'* - 

§  93.  Goods  —  Personal  Estate  —  Residue. — The  word 
"goods"  is  nomen  generalissimum,  and  when  construed  in  the 
abstract  will  comprehend  all  the  personal  estate  of  the  testa- 
tor, as  stocks,  bonds,  notes,  money,  plate,  furniture,  etc.,  etc. 
And  a  bequest  of  "all  the  testator's  chattels,"  will  have  the 
same  effect  as  a  bequest  of  all  the  "goods  and  chattels."  So 
the  word  "effects,"  standing  alone,  will  pass  the  whole  of  the 
testator's  residuary  estate."  But  where,  after  devising  all  the 
real  .estate  he  then  had,  the  testator  used  these  words:  "I  give 
and  devise  to  my  mother  all  my  other  property,  consisting  of 
horses,  cattle,  sheep  and  hogs,  moneys  and  effects  whatso- 
ever," land  bought  after  making  the  will  would  not  pass  to  the 
mother.**  When  it  is  doubtful  whether  the  word  "residue" 
applies  to  the  whole  estate  or  a  part,  it  will  be  applied  to  the 
whole  when  there  is  no  other  residuary  legatee.*^  The  word 
"estate"  is  applicable  alike  to  real  and  personal   property  or 

3  0  Bone  v.  Tyrrell,  113  Mo.  175,  20  S.  W.  79G;  Hunter  v.  Patter- 
son. 142  Mo.  310,  44  S.  W.  2.50 ;  Miller  v.  Ensminger,  182  Mo.  195,  81 
S.  W.  422 ;  Bramell  v.  Cole,  136  Mo.  210,  37  S.  W.  924.  58  Am.  St. 
Rep.  619 :  Clarkson  v.  Clarkson,  125  Mo.  381,  28  S.  ^Y.  446 ;  Cross 
V.  Hoch,  149  Mo.  325,  50  S.  W.  786. 

4  0  Small  V.  Field,  102  Mo.  104,  14  S.  W.  815. 

41  Vox  V.  Phelps,  17  Wend.  (N.  Y.)  .393;  Murphy  v.  Carlin,  113  Mo. 
112,  20  S.  W.  786,  35  Am.  St.  Rep.  699. 

42  Barheydt  v,  Barheydt,  20  ^Yend.  (N.  Y.)  576. 

43Crichton  v.  Symes,  3  Atk.  62;  Bengough  v.  Walker,  15  Yesey, 
507. 

44  Smith  V.  Hutchinson,  61  Mo.  83. 

45  Carr  v.  Dings,  58  Mo.  400 ;  2  Redfield  on  Wills,  448 ;  Shumate 
V.  Bailej-,  110  Mo.  411,  20  S.  W.  178. 


§  y-t  THE    CONSTRUCTION    OF   WILLS  87 

to  both,"''  and  the  word  "and"  will  be  read  "or"  when  the  in- 
tent of  the  testator  reciuires  it."''  And  where  the  will  gives 
the  whole  estate,  real  and  personal,  to  the  wife  during  her  life, 
to  use  as  she  may  think  best  and  what  remains  to  go  to  his 
children  or  others,  she  takes  a  life  estate  only  in  the  realty/' 
But  when  a  life  estate  is  given  with  power  of  sale,  an  estate 
in  fee  passes,  provided  the  power  be  executed,  otherwise  not.^'-* 
An  executory  devise  to  the  unborn  child  of  an  unborn  child  is 
void  as  contravening  the  rule  against  perpetuities."'" 

Any  estate  or  interest  in  property  acquired  after  making  the 
will  passes  in  like  manner  as  if  held  or  possessed  by  the  testa- 
tor at  the  time  of  making  the  will,  unless  the  intention  of  the 
testator  appears  to  have  been  otherwise.'^ 

§  94.  Description  of  Devisee  or  Legatee. — The  general 
rule  is  that  devisees  and  legatees  must  answer  the  description 
and  character  given  of  them  in  the  will.^-  But  to  this,  as  to 
all  general  rules,  tliere  are  exceptions.  A  party  claiming  a 
benefit  under  a  will  must  show  himself  to  be  the  person  in- 
tended as  the  object  of  the  testator's  bounty.  The  language  of 
the  will  may  be  so  ambiguous  and  obscure  as  to  leave  a  doubt 
as  to  the  identity  of  the  person  for  whom  the  benefit  was  in- 
tended. In  such  a  case,  if  the  matter  cannot  be  determined 
from  the  will,  after  examining  the  whole  instrument,  recourse 
may  be  had  to  parol  evidence.  And  if  there  be  no  person  an- 
swering the  description  of  the  legatees  in  the  legal  sense  of  the 
term  used  in  describing  them,  the  situation  of  the  testator's 
family  and  other  circumstances  may  be  shown  to  enable  the 

46  Shumate  v.  Bailov.  110  Mo.  411,  20  S.  W.  178. 

4  7Maguire  v.  Moore.  lOS  Mo.  2G7,  IS  S.  W.  SOT;  Prosser  v.  Ilar- 
destv.  101  Mo.  50.3.  14  S.  W.  (52S. 

4^p.ramell  v.  Adams.  146  Mo.  70,  47  S.  W.  931:  P.ramell  v.  Cole. 
i:;0  Mo.  201,  37  S.  W.  024,  58  Am.  St.  Rep.  GIO ;  Schorr  v.  Carter. 
120  Mo.  409,  25  S.  W.  538;  Foote  v.  Sanders,  72  Mo.  010;  Burford 
v!"  Ahlridse,  165  Mo.  419,  63  S.  AV.  109. 

4  9Gaven  v  Allen,  100  ilo.  293,  13  S.  W.  501;  Hazel  v.  Ilatran,  4i 
Mo  277 ;  Harbison  v.  James.  90  .Mo.  411,  2  S.  W.  292 ;  Tisdale  v. 
Prather,  210  Mo.  402.  109  S.  W.  41;  Ives  v.  Kimliu,  140  Mo.  \vv- 
29.3.  124  S.  W.  23. 

ooLockridge  v.  Mice,  109  Mo.  162,  IS  S.  W.  1145;  Gates  v.  Sei- 
bert.  157  Mo.  254,  57  S.  W.  1065.  SO  Am.  St.  Rep.  625 ;  Shepperd  v. 
Fisher.  206  Mo.  208.  103  S.  W.  089. 

r-MYatson  v.  Watson,  110  Mo.  104.  19  S.  W.  543;  Shumate  v. 
Bailey.  110  Mo.  411.  20  S.  AV.  178 ;  Webb  v.  Archibald.  128  Mo.  29V). 
34  S.  W.  54;  Mueller  v.  Buenser,  184  Mo.  458,  83  S.  W.  458,  67 
L.  R.  A.  648.  105  Am.  St.  Rep.  541. 

82  LehnhofE  v.  Theine,  184  Mo.  346,  83  S.  W.  469. 


88  THE   CONSTRUCTION   OF  WILLS  §  95 

court  to  ascertain  the  legatees  or  devisees  intended."  Leg- 
atees and  devisees  are  often  described  as  "children,"  "grand- 
children," "nephews  and  nieces,"  "cousins,"  and  the  like. 

§  95.  Same — Children. — A  legacy  or  devise  to  "children" 
witliout  any  other  description  as  a  general  rule  means  legiti- 
mate children,  and  will  be  construed  to  embrace  all  the  testa- 
tor's children,  as  w^ell  those  born  after  as  those  born  before 
the  making  of  the  will;  and  if  the  testator  has  such  children, 
parol  evidence  cannot  be  received  to  show  that  a  different  class 
of  persons  was  intended;  but  if  he  has  illegitimate  children 
only,  it  may  be  shown  that  they  were  the  children  intended. 
When  children  are  designated  as  a  class  without  further  de- 
scription, the  general  rule  is  that  all  who  answer  the  descrip- 
tion at  the  time  the  will  takes  effect,  will  be  included.^*  "Chil- 
dren" will  not  be  construed  so  as  to  include  grandchildren  un- 
less the  intention  of  the  testator  requires  it.  But  to  effectuate 
the  intention  of  the  testator,  "heirs"  will  be  construed  to  mean 
children,  and  children  may  be  regarded  as  synonymous  with 
heirs,  and  may  include  grandchildren,  but  where  the  word 
"children"  is  used  and  there  are  persons  who  answer  it,  grand- 
children cannot  take  under  it,  unless  there  is  something  in  the 
will  to  show  that  they  were  also  intended.^^  If  the  testator 
plainly  refers  to  particular  persons  by  the  word  children,  (as 
if  in  enumerating  them  he  names  one  that  has  died  leaving 
grandchildren,  or  an  illegitimate  child.)  and  then  makes  a  gift 
to  his  "said  children,"  such  grandchildren  or  illegitimate  child 
will  participate  in  the  bequest.  A  step-child  is  not  included 
in  the  term  "children"  in  a  bequest  to  the  testator's  children, 
if  he  have  children  of  his  own,  unless  by  the  terms  of  the  will 
it  shall  appear  that  it  was  also  intended.  The  term  "grand- 
children" does  not  embrace  "great  grandchildren."  We  have 
seen  that  the  word  children  does  not  include  "grandchildren," 
it  would  seem  but  reasonable,  therefore,  that  the  term  "grand- 
children" should  not  be  construed  to  include  children  next  to 

B3  Gordon  v.  Burris,  141  Mo.  602,  43  S.  W.  642. 

54  Allen  V.  Claybrook,  ,58  Mo.' 124 ;  2  Jarman,  54;  Carr  v.  Dings, 
58  Mo.  400;  Thomas  v.  Thomas,  149  Mo.  426,  51  S.  W.  Ill,  7.3  Am. 
St.  Rep.  405;  Gates  v.  Seibert.  157  Mo.  2.54,  57  S.  W.  1065,  SO  Am. 
St.  Rep.  625. 

55  2  Williams,  Ex'rs,  080,  note,  et  seq. ;  Maguire  v.  Moore,  108  Mo. 
267,  18  S.  W.  897;  Rlngquist  v.  Young,  112  Mo.  25,  20  S.  W.  159; 
Greffet  v.  Willman,  114  Mo.  106,  21  S.  W.  459 ;  Bone  v.  Tyrrell,  113 
Mo.  175.  20  S.  W.  796;  Willard  v.  Darrah,  168  Mo.  660,  68  S.  W. 
1023.  90  Am.  St.  Rep.  468;  Lich  v.  Lich,  158  Mo.  App.  400,  138  S. 
W.  558. 


§  96  THE    CONSTRUCTION    OF    WILLS  89 

them  in  the  line  of  descent.  The  several  distinctions  however, 
which  have  been  mentioned  with  re^^ard  to  the  enlargement  of 
the  word  chiKlren  are  api)licable  to  a  bequest  to  grandchildren ; 
so  that  if  it  appear  from  the  will  that  the  word  grandchildren 
was  not  used  in  its  usual  sense,  but  for  the  purpose  of  em- 
bracing all  the  descendants  of  the  persons  described,  it  will 
have  this  effect. 

§  96.  Same — Other  Relatives. — The  principle,  already 
stated  in  regard  to  the  restriction  or  enlargement  of  the  terms 
"children,"  and  "grandchildren,"  apply  to  the  words  "nei)hews 
and  nieces."  Therefore  "great  nephews  and  great  nieces" 
are  not  to  be  considered  as  included  in  that  description ;  nor 
w'ill  "grand  nephews  and  grand  nieces"  be  extended  to  include 
the  children  of  such  grand  nephews  and  grand  nieces,  unless 
such  appears  from  the  context  of  the  will  to  be  the  intention 
of  the  testator.^"  But  a  child  of  a  brother  or  sister  of  the 
half-blood  would  be  included.  We  may  suppose,  also,  that 
where  a  bequest  is  made  to  "cousins,"  the  testator  means  "first 
cousins,"  unless  the  term  may  be  enlarged  by  the  context  of  the 
will  so  as  to  include  relatives  of  a  more  remote  degree.  Un- 
der a  bequest  to  "descendants,"  unrestricted,  all  the  issue  of 
the  testator  will  be  included,  however  remote.*  Under  a  be- 
quest to  the  "issue"  of  A.  all  the  descendants  of  A.,  viz.,  chil- 
dren, grandchildren,  etc.,  are  included.  They  take  in  such 
case,  per  capita  and  not  per  stirpes.  Where  the  term  "heirs" 
is  used  to  denote  succession  or  substitution,  as  "to  the  heirs 
of  A.,"  it  means  such  persons  as  would  legally  succeed  to  the 
property  according  to  its  nature  and  quality.  But  where  the 
word  is  not  used  to  denote  succession,  but  to  describe  a  leg- 
atee, and  there  is  no  context  to  explain  it  otherwise,  there  is 
no  reason,  it  would  seem,  to  depart  from  the  natural  and  or- 
dinary meaning  of  the  word  "heir,"  and  in  such  case,  if  there 
are  more  heirs  than  one,  they  take  jointly.^ ^  "Nearest  and 
lawful  heirs,"  mean  such  as  take  under  the  law.^^  So  where 
the  grant  was  to  the  "nearest  and  lawful  heirs  of  mine  and 

c«  Willard  v.  Darrah,  168  Mo.  GGO,  GS  S.  W.  1023,  90  Am.  St.  Rep. 
468. 

6T  Brown  v.  Tu.schoff.  2:',.")  Mo.  449,  138  S.  W.  497. 

B8  Reinders  v.  Koppelinanu.  68  Mo.  488,  30  Am.  Rep.  802. 

*  The  term  "descendants,"  used  in  description  of  the  legatees  and 
devisi'es  in  a  will,  includes  all  who  proceed  from  the  body  of  the 
person  named,  as  children,  grandchildren,  and  great-grandchildren. 
Lich  V.  Lich,  158  Mo.  App.   loc.  cit.  420,  138  S.  W.   loc.  cit.  5G4. 


00  THE   CONSTRUCTION    OF   WILLS  §  97 

that  of  my  said  wife,  share  and  share  ahke,"  and  the  testator 
and  his  wife  each  had  brothers  and  sisters,  the  wife  afterward 
married  and  adopted  a  child  of  her  second  husband  as  her 
heir,  it  was  held  that  said  adopted  child  could  not  take  under 
the  will,  but  that  said  brothers  and  sisters  or  their  legal  repre- 
sentatives would  take  the  estate. ^'^  A  bequest  to  "next  of  kin" 
is  confined  to  those  who  are  entitled  under  the  statute  of  dis- 
tribution, as  nearest  of  kin,  and  does  not  include  those  who 
claim  by  representation,  or  the  widow.''**  So  if  a  bequest  is 
made  by  a  testator  to  "my  relations"  without  enumerating  any 
of  them,  such  of  his  relations  as  would  be  entitled  under  the 
statute  of  distribution  if  he  had  died  intestate,  will  alone  take 
the  bequest.  The  same  rule  applies  where  the  bequest  is  to 
"relations  by  blood  or  marriage,"  or  "to  my  poor  relations," 
or  "my  most  necessitous  relations,"  or  "my  poorest  relations," 
unless  the  legacy  be  given  to  establish  a  charity  for  poor  rela- 
tions. But  the  distribution  must  be  per  capita  and  not  per 
stirpes. ^^ 

§  97.  Same — Family,  Etc, — The  acceptation  of  the  word 
"family"  may  be  restricted  or  enlarged  by  the  context  of  the 
will,  so  as  in  some  instances  to  mean  children,  or  in  others, 
heirs,  or  it  may  even  include  relations  by  marriage.  But  in 
its  ordinary  sense  it  comprises  the  same  persons  as  "kindred" 
or  "relations,"  and  accordingly  the  same  rules  of  construction 
will  apply  to  this  as  to  those  expressions.  A  devise  to  "A.  and 
family"  is  a  devise  to  A.  and  his  wife  and  children,  and  evi- 
dence will  be  received  to  show  who  composed  the  family. '^- 
It  would  mean  widow  and  children,  but  not  a  stepson. "^^  And 
if  a  grant  or  devise  be  to  husband  and  wife  they  will  take  as 
joint  tenants  or  in  entirety,  and  the  survivor  will  take  the 
whole  estate.®*  And  if  husband  and  wife  are  co-devisees  with 
their  children  or  other  persons,  by  reason  of  their  legal  iden- 
titv,  they  are  both  regarded  as  one  person  and  together  rep- 


5  9  Reinders  v.  Koppelmann,  94  Mo.  338.  7  S.  W.  288. 

60  Garrick  v.  Lord  Camden,  14  Vesey,  373. 

61  2  Sugden  on  Powers  (7tli  Ed.)  246 ;  Maguiye  v.  Moore,  108  Mo. 
267,  18  S.  W.  897;    Records  v.  Fields,  155  Mo.  314,  55  S.  W.  1021, 

6  2  Hall  V,  Stephens,  65  :Mo.  670,  27  Am.  Rep.  302. 

63  Bates  V.  Dewson,  128  Mass.  3.34. 

64  1  Bright,  Husband  &  Wife,  25,  and  cases  cited ;  Rev.  St.  1909. 
§  2878;  Hume  v.  Hopkins.  140  Mo.  65,  41  S.  W.  784;  Bains  v.  Bul- 
lock, 129  Mo.  117,  31  S.  AV.  342 ;  Russell  v.  Russell,  122  Mo.  235,  26 
S.  W.  677,  43  Am.  St.  Rep.  581;  Corrigan  v.  Tiernay,  100  Mo.  276, 
13  S.  W.  401. 


§  98  THE   CONSTRUCTION   OF   WILLS  91 

resent  a  single  share  or  unit  equal  to  the  share  of  each  of  tiie 
others. "■'' 

A  bequest  by  a  husband  to  his  "beloved  wife,"  not  mention- 
ing her  name,  ai)|)lies  exclusively  to  the  individual  who  an- 
swers the  description  at  the  date  of  the  will,  and  will  not  ex- 
tend to  an  aftertaken  wife,  unless  the  will  has  been  republished 
after  the  second  marriage.""  A  bequest  to  "legal  representa- 
tives" refers  to  persons  entitled  under  the  law  of  distribution ; 
but  a  bequest  to  "personal  representatives"  has  been  held  to 
refer  to  the  executor  or  administrator."^  But  these,  like  all 
other  words  of  general  description,  may  be  controlled  by  the 
context  of  the  will.  There  are  many  other  general  terms,  such 
as  servants,  inhabitants,  etc.,  etc..  which  are  used  as  descriptive 
of  legatees  or  devisees,  all  of  which  are  governed  in  construc- 
tion by  the  principles  and  rules  already  given ;  we  do  not. 
therefore,  deem  it  important  to  pursue  the  subject  in  detail 
any  further. 

§  98.  Same — The  Uncertainty  in  the  Description  of  a 
Legatee,  or  ambiguity  in  a  will,  sometimes  defeats  altogeth- 
er the  object  of  the  testator,  as  where  the  ambiguity  cannot 
be  removed  by  parol  proof.  But  in  general,  a  mistake  or 
ambiguity  may  be  corrected  or  explained,  either  by  the  con- 
text or  by  parol  evidence."^  Therefore,  a  misnomer  of  a 
legatee,  or  a  mistake  in  his  name  will  not  defeat  the  legacy, 
provided  it  can  be  satisfactorily  shown  who  was  intended 
by  the  testator.*^^  There  are  two  kinds  of  ambiguity,  viz. : 
a  patent  ambiguity  and  a  latent  ambiguity.  The  former  is 
something  which  appears  on  the  face  of  the  instrument  it- 
self, which  renders  it  ambiguous  and  unintelligible ;  as,  if 
in  a  will  there  are  blanks  left  unfilled,  in  which  it  may  be 
supposed  the  testator  intended  to  place  the  name  of  a  lega- 
tee or  the  description  of  property,  or  the  like,  but  omitted 
to  do  so.    Such  an  ambiguity  cannot  be  explained  by  parol.'" 

6  5  Bright,  Husband  &  Wife,  27;  Oihson  v.  Zimnierinan,  12  Mo. 
385,  51  Aid.  Rep.  lOS ;  Carner  v.  Jones,  52  Mo.  OS ;  Shroyer  v.  Xick- 
ell.  55  Mo.  2G4;   Hall  v.  Stephens,  65  Mo.  G70.  27  Am.  Rep.  302. 

G«  Isherwood  v.  Payne,  5  Vesey,  676. 

6  7  JtMininjis  V.  Gallaniore,  3  Vesey.  146;  Elstroth  v.  Younff,  S3 
Mo.  App.  253;  In  re  Kiesenberg's  Estate.  116  Mo.  App.  308,  90  S. 
W.  1170. 

68  Thomson  v.  Thomson,  115  Mo.  56.  21  S.  W.  10S5. 

60  Cox  V.  Smith.  4  Johns.  Ch.  (N.  Y.)  271;  Ilockensmith  v.  Shisher, 
26  Mo.  237 ;    Gordon  v.  Burris,  141  Mo.  602.  43  S.  W.  642. 

TOTole  V.  Hardy.  6  Cow.  (N.  Y.)  341;  Brown  v,  Tuschoflf,  235  iNIo. 
449,  138  S.  W.  407. 


92  THE   CONSTRUCTION    OF  WILLS  §  99 

A  latent  ambiguity  is  where  the  instrument  appears  on  the 
face  of  it  to  be  intelHgible  enough,  but  a  difficulty  arises  in 
ascertaining  the  subject  matter  to  which  it  appHes;  as,  if  a 
devise  be  made  to  a  person  of  the  name  of  John  Davis,  and 
there  should  be  more  persons  than  one  of  that  name.  This 
devise,  on  the  face  of  the  will,  is  perfectly  intelligible,  but  it 
is  made  uncertain  as  to  the  person  for  whom  it  was  intend- 
ed, on  account  of  there  being  more  than  one  John  Davis. 
Now,  as  this  ambiguity  is  created  by  the  proof  of  extrinsic 
facts,  it  may  be  removed  in  the  same  way.'^ 

§  99.  Where  Interlineations  or  Erasures  appear  on  the 
face  of  a  will,  the  presumption  is  that  they  were  made  sub- 
sequent to  the  execution  of  the  instrument ;  but  where 
blanks  appear  to  have  been  filled  with  ink  and  a  handwrit- 
ing different  from  that  of  the  body  of  the  will,  the  presump- 
tion is  that  they  were  filled  up  before  the  final  execution  of 
the  instrument.  Rut  this  presumption  may,  in  either  case, 
be  repelled  by  extrinsic  evidence,  showing  the  facts  to  be 
otherwise  than  as  thus  presumed. 

§  100.  Remainders — Lapsed  Legacies. — It  was  a  rule  of 
law,  which  seemed  to  be  in  harmony  with  the  nature  of  a 
will,  that,  if  the  legatee  or  devisee  died  before  the  testator, 
the  legacy  or  devise  was  extinguished.  In  such  case  the 
legacy  is  said  to  lapse.  The  testator  might,  if  he  saw  fit, 
prevent  a  legacy  from  lapsing,  by  expressly,  or  by  clear  in- 
tendment, substituting  a  legatee  for  the  one  dying  in  his 
lifetime,  as,  if  the  bequest  be  to  A.  or  his  heirs,  the  word 
"or"  implies  a  substitution  of  the  heirs  of  A.  to  the  legacy, 
and  in  the  event  of  his  death  it  would  not  lapse.  And  if  a 
bequest  be  to  two  or  more  persons  jointly,  and  one  of  them 
should  die  before  the  testator,  the  legacy  or  interest  of  the 
deceased  legatee  would  not  lapse,  but  would  survive  to  the 
other  legatee.  But  if  a  legacy  be  given  to  two  or  more  as 
tenants  in  common,  to  be  divided  nominatim,  in  equal 
shares,  if  any  one  dies  before  the  testator,  what  was  intend- 
ed for  him  will  lapse  into  the  residue ;  but  not  if  the  will 
gave  it  to  the  survivor  in  such  event.'-     A  devise  to  a  per- 

7iTole  V.  Hardy,  G  Cow.  (N.  Y.)  .341;  1  Greenl.  Ev.  §  297  et  soq. ; 
Phill.  Ev.  534-538,  text  and  notos :  Nichols  v.  Boswell,  lO:!  Mo.  151, 
15  S.  W.  .343;    Rothwell  v.  .Taniison,  147  Mo.  601.  49  S.  W.  503. 

72  Martin  v.  Lachasso,  47  Afo.  591;  Bivdell  v.  Collier,  40  Mo.  287; 
State,  to  Use  of  Filloy,  v.  Aebly,  9  Mo.  Ayp.  57;  Lemmous  v.  Rey- 
nolds, 170  Mo.  227,  71  S.  W.  i;!5. 


g  100  THE    CONSTRUCTION    OF    WILLS  93 

son  for  life  with  remainder  over  to  another,  does  not  lapse 
on  the  death  of  the  first  taker  durin.t^^  the  testator's  life,  but 
the  remainder  takes  effect  upon  the  death  of  the  testator." 
The  law  upon  this  subject  is  to  some  extent  qualified  by 
our  statute.  It  provides  that  when  any  estate  shall  be  de- 
vised to  any  child,  grandchild,  or  other  relative  of  the  tes- 
tator, and  such  devisee  shall  die  before  the  testator,  leaving 
lineal  descendants,  such  descendants  shall  take  the  estate, 
real  or  personal,  as  such  devisee  would  have  done  in  case 
he  had  survived  the  testator.'''* 

Alany  cases  may  arise  to  which  this  statute  is  not  appli- 
cable, and  the  condition  of  the  bequest  would  have  to  be  de- 
termined by  the  law  independently  of  it ;  as,  where  the  gift 
is  to  a  class,  or  to  a  person  who  is  not  related  to  the  testator, 
or  where  the  legatee  should  leave  no  lineal  descendants. 
This  statute  substitutes  the  lineal  descendants  for  the  de- 
ceased legatee  or  devisee,  and  they  take  it  as  the  devisee 
would  have  done  if  he  had  survived  the  testator.  In  such 
a  case,  the  lineal  descendants  (or  issue)  of  the  deceased  leg- 
atee, will  take  the  bequest  per  capita.  The  term,  "lineal  de- 
scendants" includes  children,  grandchildren,  etc.,  of  the  de- 
ceased, but  not  lineal  ascendants,  or  collateral  kindred.  In 
case  of  a  devise  in  fee-tail  the  devisee  will  take  a  life  estate, 
and  the  remainder  will  pass  in  fee  to  the  person  to  whom 
the  estate  tail  would  first  pass  by  virtue  of  the  devise."^ 

When  a  remainder  in  lands  or  goods  is  limited  to  take 
efifect  on  the  death  of  any  person  without  heirs  or  heirs  of 
his  body,  or  without  issue  or  on  failure  of  issue,  the  w^ords 
heirs  or  issue  will  mean  heirs  or  issue  living  at  the  death  of 
the  person  named  as  ancestor.'^® 

Where  an  estate  is  given  by  will  to  the  survivors  of  a 
class  to  take  effect  on  the  death  of  the  testator  the  words 
"surviving  children"  or  the  word  "survivors"  means  those 

7  3  Colonian  v.  Hntchcnson.  .3  Bibb    (Ky.)  209,  6  Am.  Dec.  640. 

7  4  Rev.  St.  1909,  §  54<i;  Chism's  Adm'r  v.  Williams.  29  Mo.  2SS : 
Bredell  v.  Collier,  40  Mo.  287;  Jamison  v.  Hay,  4t)  Mo.  n4n :  Mar- 
tin V.  Lachasse,  47  Mo.  591;  Bramell  v.  Adams,  146  Mo.  70,  47  S. 
W.  931 ;   Youns  v.  Robinson,  122  Mo.  App.  187.  99  S.  W.  20. 

7  5  Rev.  St.  1909,  §  2872;  Hunter  v.  Patterson.  142  Mo.  310,  44  S. 
W.  250 :    Miller  v.  Ensminger,  182  Mo.  195,  si  S.  W.  422. 

7  0  Rev.  St.  1909,  §  2873;  Godman  v.  Simmons,  113  Mo.  122,  20 
S.  W.  972;  Naylor  v.  Godman.  109  Mo.  543,  19  S.  W.  56;  Yocum  v. 
Siler,  160  Mo.  281,  61  S.  W.  20S;  (iaiinon  v.  Pauk,  200  Mo.  75,  98 
S.  W.  471. 


94  THE    CONSTRUCTION    OF   WILLS  §  100 

livinc:  at  the  death  of  the  testator;  but  if  a  particular  estate 
is  given,  the  remainder  to  go  to  the  survivors  of  a  class,  the 
word  "survivors"  means  those  surviving  at  the  termination 
of  the  particular  estate."^ 

And  when  a  remainder  is  limited  to  the  heirs  or  heirs  of 
the  body  of  a  person  to  whom  a  life  estate  is  given  in  the 
same  premises,  the  persons  who,  on  termination  of  the  life 
estate,  shall  be  the  heirs  or  heirs  of  the  body  of  such  tenant 
for  life,  will  take  the  fee.'^^  But  when  the  conveyance  is 
made  to  one  and  his  bodily  heirs  an  adopted  child  cannot 
inherit  or  take  the  remainder.'^'* 

A  future  estate  depending  on'  the  contingency  of  the 
death  of  any  person  without  heirs  or  issue  or  children,  will 
be  defeated  by  the  birth  of  a  posthumous  child  of  such  per- 
son capable  of  taking  by  descent. ^° 

When  the  estate  conveyed  is  limited  in  remainder  to  the 
son  or  daughter,  or  to  the  use  of  the  son  or  daughter  of  any 
person  to  be  begotten,  such  son  or  daughter  born  after  the 
decease  of  the  father  will  take  the  estate.  An  estate  may  be 
made  to  commence  in  future  by  deed  in  like  manner  as  by 
will,  but  the  courts  have  held  that  the  title  to  such  future 
estate  conveyed  by  deed  must  take  effect  immediately 
though  the  right  to  possession  be  postponed,  otherwise  the 
deed  will  be  void.^^ 

§  101.  Same — A  legacy  may  lapse  by  the  death  of  the 
legatee  after  the  death  of  the  testator.  The  general  rule  of 
construction  is,  that  if  no  time  of  payment  be  specified  the 
legacy  is  due  on  the  death  of  the  testator,  although  the  ex- 
ecutor may  not  be  compelled  to  pay  it  for  a  year  afterward. 

7  7  Sullivan  v.  Garesclie,  229  Mo.  4m.  129  S.  W.  949;  Dickerson  v. 
Dickersou,  211  Mo.  483,  110  S.  W.  700. 

7  8  Rev.  St.  1909,  §  2874;  Von  I'lnil  v.  Hay,  122  Mo.  .300,  26  S.  W. 
965 ;  Reod  v.  Lane,  122  Mo.  311,  2G  S.  W.  957 ;  (iodman  v.  Sininioiis, 
113  Mo.  122,  20  S.  W.  972;  Waddell  v.  Waddell,  99  Mo.  338,  12  S. 
W.  349,  17  Am.  St.  Rep.  575;  Wood  v.  Kice,  103  Mo.  329,  15  S.  W. 
623;  Brown  v.  Fulkerson,  125  Mo.  400,  2S  S.  W.  632;  Launieier  v. 
Gehner,  110  Mo.  122,  19  S.  W.  82;  Sikemeier  v.  Galvin.  124  Mt).  367, 
27  S.  W.  551 ;   Tyard  v.  Ilartwell,  204  Mo.  200,  102  S.  W.  989. 

Tociarkson  v.  Ilatton,  143  Mo.  47,  44  S.  W.  761,  .39  L.  R.  A.  74S, 
65  Am.  St.  Rep.  635 ;  Ilockaday  v.  I>ynn,  200  .Mo.  456,  98  S.  W.  585, 
8  L.  R.  A.  (X.  S.)  117,  118  Am.  St.  Rep.  672,  9  Ann.  Cas.  775. 

8  0  Kev.  St.  1909,  §  2877. 

81  Rev.  St.  1909,  §  2876;  Garvin's  Adm'r  v.  Willianis.  44  Mo.  465, 
100  Am.  Dec.  314;  Aldridt,'e  v.  Aldrid^e,  202  Mo.  565,  101  S.  W,  42; 
Buxton  V.  Kroeger,  219  Mo.  224,  117  S.  W.  1147. 


§  101  THE    CONSTRUCTION    OF    WILLS  95 

In  such  case  the  death  of  the  lejj;atee  before  the  payment 
of  the  let^acy  would  not  cause  it  to  lapse.  But  where  the 
future  time  of  payment  is  defined  in  the  will,  the  lej^acy  will 
be  vested  or  contingent,  and  will  lapse  or  not,  on  the  death 
of  the  legatee,  according  as.  upon  construing  the  will,  it 
appears  whetlur  llie  tcsUitdr  meant  to  annex  the  time  to 
the  payment  of  the  legacy,  or  to  the  bequest  of  it.  In  ascer- 
taining the  intention  (jf  the  testator  in  this  respect,  courts 
of  equity  have  established  two  positive  rules  of  construc- 
tion : 

1.  That  a  bequest  to  a  person  payable  or  to  be  paid  at 
any  certain  determinate  time,  as  at  or  when  he  shall  arrive 
at  the  age  of  twenty-one  years,  or  be  married  or  the  like, 
confers  on  him  a  vested  interest,  immediately  on  the  testa- 
tor's death;  it  being  considered  as  "debitum  in  presenti,  sol- 
vendum  in  futuro,"  and  therefore  transmissible  to  his  ex- 
ecutors or  administrators. 

2.  That  if  the  words  "payable"  or  "to  be  paid"  are  omit- 
ted, and  the  legacy  is  given  at  twenty-one,  or  when  or  if  the 
legatee  shall  attain  the  age  of  twenty-one,  these  expressions 
annex  the  time  to  the  substance  of  the  legacy,  and  make 
the  legatee's  right  to  depend  on  the  happening  of  the  event 
contemplated.  It  is  a  contingent  legacy,  which  does  not 
vest  until  the  contingency  upon  which  it  depends  occurs. 
Therefore,  if  the  legatee  dies  before  the  event  transpires 
upon  which  the  legacy  depends,  his  personal  representatives 
will  not  be  entitled  to  it, — it  will  lapse. 

These  rules  are  subject  to  exceptions,  however,  arising 
from  the  intention  of  the  testator,  when  the  same  can  be 
discovered  from  the  context  of  the  will.^- 

It  is  a  rule  of  law  that  if  the  bequest  be  to  A.  for  life,  and 
after  the  death  of  A.,  to  B.,  the  bequest  to  B.  is  vested  on 
the  death  of  the  testator,  and  will  not  lapse  by  the  death  of 
B.  in  the  lifetime  of  A.**-'  But  if  a  legacy  be  to  A.,  and  A. 
dies  before  the  death  of  the  testator,  the  bequest  will  lapse ; 
but  if  he  leaves  lineal  descendants,  it  will  go  to  them ;  "^^  but 
if  a  legacy  be  to  two  jointly,  and  in  the  event  of  the  death 

82  2  Williams,  Ex'rs,  1009;  Harris  v.  Cook,  OS  Mo.  App.  :!Si,  71 
S.  W.  llliC);    Ilaniilton  v.  Lewis,  I'.i  Mo.  1S4. 

83  2  Blackstone,  Com.  5-12;  2  Williams.  Rx'rs.  801;  Martin  v. 
Laehasse,  47  Mo.  501 ;    Bredell  v.  Collier.  40  Mo.  2S7. 

0*  Kev.  St.  1000.  §  540;  P.ramell  v.  Adams.  14(5  Mo.  70,  47  S.  W. 
931 ;   Young  v.  liobiusou,  122  Mo.  App.  187,  00  S.  W.  20. 


96  THE    CONSTRUCTION    OF   WILLS  §  102 

of  either,  to  the  survivor,  and  one  dies  before  the  testator, 
the  other  will  take  it.®^ 

§  102.  Contributions  by  Devisees  and  Legatees. — When 
the  personal  estate  is  insufficient  to  pay  the  debts,  the  unde- 
vised real  estate  w^ould  be  liable  and  must  be  resorted  to  be- 
fore that  which  has  been  devised  can  be  taken,  unless  a  dif- 
ferent arrangement  has  been  made  by  the  will.  And  when 
any  property  has  been  taken  from  a  devisee  for  that  pur- 
pose, all  the  other  devisees  and  legatees  must  contribute  to 
make  the  loss  equal  according  to  the  value  of  the  property 
received  by  each,  unless  specific  devises  and  bequests  be 
exempt,  or  different  provision  be  made  by  the  testator  for 
making  such  contribution ;  and  if  any  be  insolvent,  the  oth- 
ers must  bear  and  divide  the  loss.*'' 

§  103.  Lineal  and  Collateral  Warranties  with  all  their 
incidents,  are  abolished,  but  the  heirs  and  devisees  of  every 
person  who  has  made  a  covenant  or  agreement,  will  be  an- 
swerable upon  such  covenant  or  agreement  to  the  extent  of 
the  lands  descended  to  them ;  devisees  stand  on  the  same 
footing  as  an  heir.*^  The  covenant  may  be  implied  from 
the  words,  "grant,  bargain  and  sell,"  according  to  the  stat- 
ute, or  it  may  be  special  or  both,  and  in  either  case  it  will 
run  with  the  land,  and  when  there  is  a  substantial  breach, 
the  owner  who  sustains  the  loss  may  have  an  action  against 
the  covenanter,  or  his  estate  if  it  has  not  been  settled,  but 
if  it  has  been  finally  settled,  he  may  proceed  against  the 
heirs  and  devisees,  who  will  be  liable  for  a  proportionate 
share  each,  not  exceeding  the  value  of  the  estate  received 
by  them.  The  liability  is  limited  to  the  purchase  money  and 
interest,  but  if  the  plaintiff  has  received  rents,  such  rents 
will  offset  the  interest,  and  the  recovery  will  be  confined  to 
the  actual  loss,  including  costs  and  attorney  fees.** 

85  Martin  v.  Lacliasse,  47  Mo.  591 ;  Dodge  v.  Sherwood,  176  Mo. 
.33,  75  .S.  W.  417. 

8  6  Rev.  St.  1909,  §S  581,  5S2 ;  Levins  v.  Stevens,  7  Mo.  90;  Boyer 
V.  Dively,  58  Mo.  510 ;  Breidenstein  v.  Bertram,  198  Mo.  328,  95  S. 
W.  828. 

8  7  Rev.  St.  1909,  §  2875;  State  ex  rel.  Brouse  v.  Burnes,  129  Mo. 
App.  474,  107  S.  W.  1094. 

8  8  Collier  v.  Gamble,  10  Mo.  467;  Dickson  v.  Desire's  Adm'r,  23 
Mo.  151,  66  Am.  Dec.  661;  Boyd  v.  Haseltine,  110  Mo,  203,  19  S. 
W.  822;  Freeman  v.  MotRtt,  119  Mo.  280,  25  S.  W.  87;  Loring  v. 
Groomer,  142  Mo.  1,  43  S.  W.  647;  Hazelett  v.  Woodruff,  1.50  Mo. 
.534,  51  S.  W.  1048;  Matlieny  v.  Stewart,  108  Mo.  73,  17  S.  W.  1014; 
Coleman  v.  Clark,  80  Mo.  App.  339;  Whiteside  v.  Magruder,  75  Mo. 
App.  366. 


§  105  OF  TRUSTS   AND   TKU8TEE8  97 

CHAPTER  XII 
OF  TRUSTS   AM)  TRUSTEES  CREATED  BY  WILL 

i  104.  Trustees— Bequest  for  public  charity. 

105.  Words  creating  trusts. 

106.  Trustees  appointed — When. 

107.  Express  and  resulting  trusts. 

108.  Same — By  court  of  chancery. 

109.  Duty  of  trustee— Degree  of  care  required. 

§  104.  Trustees — Bequest  for  Public  Charity. — A  be- 
quest intended  as  a  i)ublic  charity  will  be  upheld  where  the 
trust  is  clear  and  the  objects  sufficiently  certain  and  definite 
to  be  carried  into  effect,  and  the  will  need  not  name  any 
individual  beneficiary,  or  point  out  any  plan  by  which  the 
objects  of  the  bequest  shall  be  accomplished.^  If  the  will 
appoint  certain  or  ascertainable  trustees  with  power  to  se- 
lect the  beneficiaries  and  devise  a  plan  for  the  application 
of  the  funds  to  the  object  named,  the  trustees  may  execute 
the  charity  in  such  manner  as  they  see  fit.- 

§  105.  Words  Creating  a  Trust.— The  rule  is  that  no 
particular  form  of  words  or  expression  is  requisite  to  the 
creation  of  a  trust,  and  that  words  of  recommendation,  re- 
quest, entreaty,  wish,  desire  or  expectation,  will  impose  a 
binding  duty  upon  the  devisee  by  w^ay  of  trust,  provided 
the  testator  has  pointed  out  with  sufficient  clearness  and 
certainty  both  the  subject  matter  and  the  object  of  the 
trust.^ 

It  is  said  that  four  things  must  concur  to  create  a  trust: 
1,  sufficient  words  to  create  a  trust;  2,  a  definite  subject; 
3,  a  definite  object;  4,  the  terms  of  the  trust  should  be  suf- 

1  Clianibers  v.  City  of  St.  Louis,  29  Mo.  589. 

2  Powell  V.  Hatch.  100  Mo.  50l>.  14  S.  W.  49 ;  Sappington  v.  Sap- 
pington  School  Fund  Trustees,  12?,  Mo.  32.  27  S.  W.  350;  Howe  v. 
Wilson,  91  Mo.  45,  3  S.  W.  300,  GO  Am.  Rep.  226. 

3  A'andyck  v.  Van  Beuren,  1  Caines  (N.  Y.)  84;  Jarm.  Wills,  336; 
2  Redf.  "Wills  (2d  Ed.)  410 ;  Schmucker's  Estate  v.  Reel,  01  Mo.  592 ; 
Cornelius  v.  Smith,  55  Mo.  528;  Childs  v.  Wesleyan  Cemetery  As- 
sociation, 4  Mo.  App.  74;  Ames  v.  Scuddy,  11  Mo.  App.  168;  Harris 
Banking  Co.  v.  Miller.  190  Mo.  640.  SO  S.  W.  629,  1  L.  R.  A.  (N.  S.) 
790 ;  Zeideman  v.  Molasky,  118  Mo.  Aii».  106,  94  S.  W.  754 ;  McKee 
V.  Allen,  204  Mo.  655,  103  S.  W.  76. 

Kel.Mo.P.G.— 7 


98  or   TRUSTS   AND   TRUSTEES  §  106 

ficiently  declared.*  There  should  be  an  intention  to  create 
a  trust,  or  it  should  result  by  operation  of  law  from  the 
acts  of  the  parties.^  An  express  trust  not  relating  to  per- 
sonal property  must  be  proved  by  writing.^ 

§  106.  Appointment  of  Trustee. — Courts  of  equity,  as 
such,  have  power  to  appoint  a  trustee  to  discharge  a  trust 
created  by  will,  for  a  trust  will  never  be  allowed  to  fail  for 
want  of  a  trustee." 

The  statutes  authorizing  the  summary  appointment  of 
trustees  do  not  apply  to  trusts  under  wills ;  **  and  a  court 
of  equity  has  no  inherent  power  to  remove  a  trustee  created 
by  a  will  and  appoint  a  successor  without  notice  to  such 
trustee.® 

Courts  will  guard  property  held  in  trust  for  a  charitable 
purpose,  and  the  fund  arising  therefrom,  with  a  jealous  eye, 
and  will  see  that  it  is  not  misappropriated  or  diverted  from 
its  proper  channel  and  humane  objects. ^*^ 

The  trustee  must  use  such  care  and  diligence  in  the  man- 
agement of  the  trust  property  as  ordinarily  prudent  men 
would  employ  in  their  own  afifairs  of  like  nature;  ^^  and  if 
any  profits  are  made,  they  belong  to  the  beneficiary.^- 

4  In  re  Estate  of  Soulard,  141  Mo.  642,  43  S.  W.  617 ;  Condit  v. 
Maxwell,  142  Mo.  266,  44  S.  W.  467. 

5  Condit  V.  INIaxwell,  142  Mo.  266,  44  S.  W.  467 ;  Porter  v.  Woods, 
138  Mo.  539.  39  S.  W.  794;  Harris  Banking  Co.  v.  Miller,  190  Mo. 
640,  S9  S.  W.  629,  1  L.  R.  A.  (N.  S.)  790. 

6  Rev.  St.  1909,  §  2868 ;  Mulock  v.  Mulock,  156  Mo.  431,  57  S.  W. 
122 ;  Heil  v.  Heil,  184  INIo.  665,  84  S.  W.  45 ;  Forest  v.  Rogers,  128 
Mo.  App.  6,  106  S.  W.  1105 ;  Rector,  etc.,  of  Mt.  Calvary  Church  v. 
Albers.  174  Mo.  331,  73  S.  W.  508;  Crowley  v.  Crowley,  131  Mo. 
App.  178,  110  S.  W.  1100;  Carroll  v.  Woods,  132  Mo.  App.  492,  111 
S.  W.  885. 

7  Brandon  v.  Carter,  119  Mo.  572,  24  S.  W.  1035,  41  Am.  St.  Rep. 
673 ;  Harwood  v.  Tracy,  118  Mo.  631,  24  S.  W.  214 ;  United  States 
Casualty  Co.  v.  Kacer,  169  Mo.  301,  C9  S.  W.  370,  58  L.  R.  A.  436, 
92  Am.  St.  Rep.  641. 

8  Rev.  St.  1909.  §§  11919,  11920 ;  Hitch  v.  Stonebraker,  125  Mo.  128, 
28  S.  W.  443;  Brandon  v.  Carter,  119  :Mo.  572,  24  S.  W.  1035,  41 
Am.  St.  Rep.  673. 

9  Hitch  V.  Stonebraker,  125  Mo.  128,  28  S.  W.  443;  Brandon  v. 
Carter,  119  Mo.  572,  24  S.  W.  1035,  41  Am.  St.  Rep.  673. 

10  Diffenderfer  v.  Board  of  Bresident,  etc.,  of  St.  Louis  Public 
Schools,  120  Mo.  447,  25  S.  W.  542. 

11  Finley  v.  Schlueter,  54  M,o.  App.  4.55;  Bates  v.  Hamilton,  144 
Mo.  ].  45  S.  W.  641,  66  Am.  St.  Rep.  407:  Donaldson  v.  Allen,  182 
Mo.  626,  81  S.  W.  1151. 

12  Connecticut  :\Iut.  Life  Ins.  Co.  v.  Smith,  117  Mo.  261,  22  S.  W. 
623,  38  Am.  St.  Rep.  656 ;    Patterson  v.  Booth,  103  Mo.  402,  15  S.  W. 


§  106  OF  TRUSTS  AND  TRUSTEES  9^ 

If  he  buys  the  trust  property,  he  will  hold  it  in  trust  at 
the  option  of  the  cestui  que  trust  ;^^  or  if  he  uses  trust 
funds  in  the  purchase  of  realty,  the  beneficiary  is  entitled 
to  a  special  lien  to  secure  the  repayment  of  the  funds. ^^ 

A  trustee  cannot,  as  a  general  rule,  act  in  the  dual  ca- 
pacity of  seller  and  buyer  at  a  sale  conducted  by  himself.^-' 
But  he  may  employ  an  agent  when  necessary,  and  he  will 
not  be  liable  for  losses  occurring  from  his  act,  if  the  agent 
selected  was  a  proper  one.^® 

A  power  given  by  the  will  to  the  executors  and  trustees 
to  sell  and  reinvest,  does  not  confer  on  them  the  power  to 
change  the  character  of  the  estate  and  convert  it  into  a  cor-  . 
poration.^'^ 

A  court  of  equity  cannot  make  a  will  for  the  testator,  nor 
substitute  an  outside  charity  for  the  one  created  by  the  will, 
but  where  a  valid  charity  established  by  will  cannot  be  car- 
ried out  exactly  in  detail,  the  court  may  provide  that  the 
substantive  purpose  shall  be  affected  if  it  can  be  done  in 
some  different  way.^^  And  if  the  property  devised  is  of  a 
perishable  nature,  the  trustee  may  convert  it  into  a  sub- 
stantial, enduring  revenue  producing  investment.^"  The 
court  may  direct  a  sale  of  the  property  or  modify  the  direc- 
tions of  the  founder  of  the  charity  concerning  the  disposi- 
tion of  it,  when  there  is  a  reasonable  necessity  for  do- 
ing so.^" 

543;     South   Joplin  Land   Co.  v.   Case,  104  Mo.  572,  IG  S.  W.  390; 
Green  Tree  Brewing'  Co.  v.  Dold,  45  Mo.  App.  603. 

13  Darling  v.  Potts,  118  Mo.  506,  24  S.  W.  461;  Midland  Nat.  Bank 
of  Kansas  City  v.  Brightwell,  148  Mo.  358,  40  S.  W.  094,  71  Am.  St. 
Rep.  608. 

14  Darlinf?  v.  Potts,  118  Mo.  506,  24  S.  W.  461;  Huetteman  v.  ^■ies- 
selniann,  48  Mo.  App.  582;  Patterson  v.  Booth,  103  Mo.  402.  15  S. 
W.  543. 

15  McKee  v.  Spiro,  107  Mo.  452,  17  S.  W.  1013;  Enneau  v.  Rieser. 
105  Mo.  659,  16  S.  W.  854;  Hill  v.  Rich  Hill  Coal  Mining  Co.,  119 
Mo.  9,  24  S.  W.  223 :  Bnrford  v.  Aldridge,  165  Mo.  419,  63  S.  W.  109 ; 
Newton  v.  Rebenack.  90  ^lo.  App.  650. 

10  Anderson  v.  Roberts,  147  Mo.  486,  48  S.  W.  847. 

iTGaresche  v.  I>evering  Inv.  Co.,  146  Mo.  436,  48  S.  AY.  653,  46 
L.  R.  A.  232. 

18  Women's  Christian  Ass'n  v.  Kansas  City.  147  Mo.  103.  48  S. 
W.  960;  Lackland  v.  Walker.  151  Mo.  210.  52  S.  W.  414;  Chambers 
V.  City  of  St.  Louis,  29  Mo.  543. 

1'-'  Garesche  v.  Levering  Inv.  Co..  146  Mo.  436,  48  S.  W.  653,  46  L. 
R.  A.  232;    Mason  v.  Bank    of  Commerce.  90  Mo.  452.  3  S.  W.  206. 

20  Women's  Clirlstian  Ass'n  v.  Kansas  City,  147  Mo.  103,  48  S.  W. 
960;    Lackland  v.  Walker,  151  Mo.  210,  52  S.  W.  414. 


100  OF   TRUSTS    AND   TRUSTEES  §  107 

§  107.  Express  and  Resulting  Trusts. — Parol  evidence 
is  not  admissible  to  establish  an  express  trust. ^^  But  a 
failure  to  make  a  written  declaration  of  the  trust  will  not 
prevent  a  trust  from  resulting-  by  operation  of  law."  Re- 
sulting trusts  may  be  established  by  parol  testimony;  but 
the  evidence  must  be  clear  and  leave  no  room  for  doubt  as 
to  the  nature  of  the  transaction. ^^ 

An  implied  or  constructive  trust  arises  where  one  party 
has  obtained  money  which  rightfully  belongs  to  another ;  2* 
or  where  the  consideration  for  the  purchase  of  land  is  paid 
by  one  party  and  the  land  is  conveyed  to  another  who  holds 
the  title  for  the  benefit  of  him  who  paid  the  consideration, 
or  where  the  wife's  money  was  used  to  pay  for  land  and  the 
title  was  conveyed  to  the  husband,  in  which  case  he  would 
hold  the  title  in  trust  for  her  and  her  heirs. -^  But  when  the 
husband  or  parent  furnishes  the  purchase  money,  and  the 
title  is  conveyed  to  the  wife  or  child,  the  presumption  is 
that  it  was  intended  as  a  provision  for  the  wife  or  child,  but 
this  presumption  may  be  overcome  by  parol  testimony  and 
the  attending  circumstances.-^     Where  an  estate  is  given 

21  Curd  V.  Brown,  148  Mo.  82,  49  S.  W.  990;  Mulock  v.  Mulock, 
156  Mo.  431,  57  S.  W.  122;  Hillman  v.  AUeu,  145  Mo.  638,  47  S. 
W.  509 ;  Rector,  etc.,  of  Mt.  Calvary  Church  v.  Albers,  174  Mo.  331, 
73  S.  W.  508 ;  McKee  v.  Allen,  204  Mo.  655,  103  S.  W.  76 ;  Heil  v. 
Heil,  184  Mo.  665,  84  S.  W.  45. 

22  Condit  V.  Maxwell,  142  Mo.  266.  44  S.  W.  467;  Heil  v.  Pleil,  184 
Mo.  665,  84  S.  W.  45 ;  Plumb  v.  Cooper.  121  Mo.  668,  26  S.  W.  678 ; 
Weiss  V.  Heitkamp,  127  Mo.  23,  29  S.  W.  709 :  Buuel  v.  Nester,  203 
Mo.  429,  101  S.  W.  69;  Butler  v.  Carpenter,  163  Mo.  597,  63  S.  W. 
823. 

2  3  Forrester  v.  Moore,  77  Mo.  651;  King  v.  Isley,  116  Mo.  1.55.  22 
S.  W.  634 ;  Bradley  v.  Bradley,  119  Mo.  58,  24  S.  W.  757 ;  Reed  v. 
Painter.  129  Mo.  674,  31  S.  W.  919;  Owensby  v.  Cliewning,  171  Mo. 
226,  71  S.  W.  122 ;  Viers  v.  Viers,  175  Mo.  444,  75  S.  W.  395 ;  Bunel 
V.  Nester,  203  Mo.  429,  101  S.  W.  69. 

24  Boynton  v.  Miller,  144  Mo.  681,  46  S.  W.  754;  Prewitt  v.  Prew- 
itt,  188  Mo.  675,  87  S.  W.  1000;  Bircher  v.  St.  Louis  Sheet  Metal 
Ornament  Co.,  77  Mo.  App.  509. 

2  5  Crawford  v.  Jones,  163  Mo.  577,  63  S.  W.  838;  Curtis  v.  Moore, 
162  Mo.  442,  63  S.  W.  80;  James  v.  GrofE,  157  Mo.  402,  57  S.  W. 
1081;  McGregor-Noe  Hardware  Co.  v.  Horn,  146  Mo.  129,  47  S.  W. 
957;  Condit  v.  Maxwell,  142  Mo.  266,  44  S.  W.  467;  Garrett  v. 
Garrett,  171  Mo.  155,  71  S.  W.  153;  Smith  v.  Smith,  201  Mo.  533, 
100  S.  W.  570 ;  Hudson  v.  Wright,  204  Mo.  417,  103  S.  W.  8 ;  Free- 
land  V.  Williamson,  220  Mo.  217.  119  S.  W.  560. 

2  6  Curd  V.  Brown,  148  Mo.  82.  49  S.  W.  990;  Hall  v.  Hall,  107  Mo. 
101,  17  S.  W.  811;    McDonald  v.  McDonald,  86  Mo.  App.  122. 


§   1U9  OF   TRUSTS    AND   TRUSTEES 


101 


to  executors  and  trustees  during  the  continuance  of  a  life 
estate,  the  trust  ceases  at  the  termination  of  such  estate 
and  the  trustees  have  no  power  to  prolong  their  tenure  of 
office  or  their  care  of  the  estate,  or  to  interfere  with  the 
rights  of  the  remaindermen  by  incorporating  it,  or  to 
change  the  natue  of  the  estate  or  property  unless  it  is  of 
a  perishable  nature,  and  then  only  to  convert  it  into  a  pay- 
ing investment. ^^ 

§  108.  Same — By  Court  of  Chancery. — And  the  rule  is 
that  where  trustees  capable  of  taking  the  legal  estate  were 
originally  appointed,  so  that  a  valid  use  w^as  in  the  first  in- 
stance raised,  and  the  case  was  thus  brought  within  the 
jurisdiction  of  a  court  of  chancery,  that  court  will  supply 
any  defect  which  arises  in  consequence  of  the  death  or  dis- 
ability or  refusal  of  the  trustees  to  act.-^  And  in  a  suit  for 
the  appointment  of  a  trustee,  all  the  parties  beneficially  in- 
terested should  be  made  parties.-"  And  if  the  suit  be  for 
the  removal  of  a  trustee  and  the  appointment  of  another, 
the  former  trustee  should  be  a  party  in  order  to  conclude 
his  interest  or  revoke  his  authority ;  cestui  que  trusts  should 
be  parties,  as  they  are  interested  in  the  judicious  manage- 
ment of  the  estate.^"  * 

§  109.  Duty  of  Trustee. — A  trustee  is  not  an  insurer. 
He  is  bound  to  exercise  the  utmost  good  faith,  may  acquire 
no  interest  adverse  to  the  trust,  and  must  exercise  such  care 
and  diligence  in  respect  to  the  management  and  discharge 
of  the  trust  as  under  all  the  circumstances,  considering  the 
magnitude  of  the  trust,  the  interests  involved  and  the  con- 
sequences of  mistake,  would  be  reasonable — such  as  men  of 
discretion  and  intelligence  employ  in  their  own  affairs.^ ^ 

2  7  Garesche  v.  LevoriiiK  Inv.  Co.,  14G  Mo.  4.*?G,  4S  S.  W.  653,  46 
L.  R.  A.  232 ;  Emmons  v.  Gordon,  140  Mo.  490,  41  S.  W.  99S,  62  Am. 
St.  Rep.  734. 

2  8  Morrow  v.  Morrow.  113  Mo.  App.  444,  87  S.  W.  590. 

2  9  Hill  on  Trustees,  195. 

30  Brandon  v.  Carter,  119  Mo.  572,  24  S.  W.  1035,  41  Am.  St.  Rep. 
673. 

31  Morrow  v.  Saline  County  Com'rs,  21  Kan.  4S4 :  Taylor  v.  Ilite, 
61  Mo.  142;  Graham  v.  King,  50  Mo.  22,  11  Am.  Rep.  401;  Bales 
V.  Perry,  51  Mo.  449;  State  ex  rel.  Townshend  v.  Meagher.  44  Mo. 
356,  100  Am.  Dec.  298;  Shuey  v.  Latta,  17  Cent.  L;iw  Jr.  353;  Fin- 
ley  V.  Schlueter,  54  Mo.  App.  455;    Reynolds'  Appeal,  70  Mo.  App. 

♦  This  decision  holds  that  where  a  trustee  refuses  to  act  he  is  not 
a  necessary  party  to  a  proceeding  in  equity  to  fill  the  vacancy. 


102  OF   TRUSTS   AND   TRUSTEES  §  109 

If  the  trustee  has  performed  his  duties  faithfully  in  the 
management  of  his  trust  he  should  be  allowed  reasonable 
compensation  or  commission  for  his  services,  but  if  he  fails 
to  perform  his  duty  he  should  not  be  allowed  compensa- 
tion.^^ If  he  has  lost  the  fund  or  estate  of  his  ward  and 
undertakes  to  exonerate  himself,  he  must  produce  the  most 
satisfactory  proof  that  he  was  not  in  fault.^^ 

Whether  he  should  be  charged  with  interest  on  the  trust 
fund  and  at  what  rate  depends  upon  the  circumstances ; 
if  he  could  have  obtained  interest  and  failed  to  do  so,  he  will 
be  chargeable  with  it,  and  if  he  speculated  with  it,  and  no 
other  way  can  be  adopted  to  ascertain  the  profit  which 
rightly  belongs  to  the  beneficiary,  he  may  be  charged  with 
compound  interest.^* 

There  must,  however,  have  been  a  willful  breach  of  duty 
on  the  part  of  the  trustee  in  order  to  justify  charging  him 
with  compound  interest  upon  accumulated  trust  funds  or 
profits  in  his  hands. ^^ 

A  court  of  equity  will,  on  application  of  any  party  in- 
terested, compel  the  execution  of  a  trust,  and  restrain  any 
diversion  of  the  trust  property  from  the  appointed  use.^*^ 

576;  Bates  v.  Hamilton,  144  Mo.  1.  45  S.  W.  G41,  66  Am.  St.  Rep. 
407;  Hiklenbrandt  v.  Wolff.  79  Mo.  App.  333;  Seehorn  v.  American 
Nat.  Bank,  148  Mo.  256,  49  S.  W.  SS6. 

3  2  In  re  Estate  of  Bowie,  74  Mo.  App.  191;  Kemp  v.  Foster,  22 
Mo.  App.  643. 

ss  Dalrymple  v.  Craig,  149  Mo.  345,  50  S.  W.  884;  Garesche  v.  Lev- 
ering Inv.  Co.,  146  Mo.  436.  48  S.  W.  653,  46  L.  R,  A.  2.32 ;  Newman 
V.  Newman,  1.52  jNIo.  398,  54  S.  W.  19 ;  Keet  &  Rountree  Dry  Goods 
Co.  V.  Gideon,  80  Mo.  App.  609. 

34  Kane  v.  Kane's  Adm'r,  146  Mo.  605,  48  S.  W.  446;  Ulrici  v. 
Boeckeler,  72  Mo.  App.  661;  Darling  v.  Potts,  118  Mo.  506,  24  S. 
W.  461 ;   Bobb  v.  Bobb,  89  Mo.  411.  4  S.  W.  511, 

3  5Bobb  V.  Bobb,  7  Mo.  App.  501;  Ames  v.  Scudder,  11  Mo.  App. 
169. 

3  8  Hildeubrandt  v.  Wolff,  79  Mo.  App.  3.33;  Seehorn  v.  American 
Nat.  Bank,  148  Mo.  256,  49  S.  W.  886. 


^10  ELECTION    BY    WIDOW,  ETC,  103 


CHAPTER  XIII 

OF  ELECTION  BY  WIDOW  TO  ACCEI'T  OR  RENOUNCE 
THE  WILL 

§  110.     Roniinciatinn  or  acceptanco  of  will   hy   widow  in  Missouri. 

§  110.  Renunciation  or  Acceptance  of  Will  by  Widow. 
— If  a  testator  by  will  devise  real  estate  to  his  wife,  such 
devise  will  be  in  lieu  of  dower  in  his  real  estate  of  which 
he  died  siezed,  or  in  which  he  had  an  interest  at  the  time 
of  his  death,  unless  the  testator  by  his  will  otherwise  de- 
clare. That  is,  such  devise  will  be  in  lieu  of  dower  unless 
the  will  provides  that  she  shall  have  it  in  addition  to  her 
dower  in  the  real  estate,  and  if  the  will  does  not  so  declare, 
if  she  prefers  the  devise  to  dower  she  need  not  file  a  formal 
acceptance;  her  failure  to  renounce  the  will  within  twelve 
months  is  an  acceptance  of  it,  but  if  she  prefers  dower  to 
the  devise  she  must,  by  writing,  duly  executed  and  acknowl- 
edged, as  in  case  of  deed  for  land,  and  filed  in  the  office 
of  the  court  in  which  the  will  is  proven  and  recorded,  within 
twelve  months  after  the  proof  of  the  will,  refuse  to  accept 
the  provisions  made  for  her  by  the  wall.^  Although  she 
niay  accept  the  will  she  may  afterward,  within  the  year,  re- 
nounce it  and  claim  her  dower;  -  and  especially  if  she  did 
not  act  with  a  full  knowledge  of  the  condition  of  the  es- 
tate, and  her  rights  under  the  will,  and  under  the  law.^  An 
insane  widow  cannot  by  her  own  act  renounce  the  provi- 
sions of  her  husband's  will,  nor  elect  to  take  one-half  of  the 
estate  in  lieu  of  dower,  but  her  guardian  may  elect  for  her 
as  between  the  wmII  and  dower.* 

1  Rev.  St.  1909,  §§  3G0,  3G1 ;  Dougherty  v.  Barnes,  64  :^Io.  l.~)9: 
Lackland  v.  Stevenson.  54  Mo.  108 ;  Ewing  v.  EAviug,  44  ;Mo.  2.j  ; 
Price  V.  Woodford.  4'5  Mo.  247 ;  Peniberton  v.  Pemberton,  29  ^lo. 
408;  Brant  v.  Brant,  40  JIo.  2G6;  Lilly  v.  Menke,  120  Mo.  190,  2S 
S.  W.  643,  994 :  Allen  v.  Harnett,  116  Mo.  278,  22  S.  W.  717 ;  Hall 
V.  Smitli,  103  Mo.  289,  15  S.  W.  623;  McKee  v.  Stuckey,  181  Mo. 
719,  81  S.  AV.  160  (contra)  ;    Ball  v.  Ball.  105  'Slo.  312.  65  S.  W.  552. 

■■i  Bretz  v.  Matnoy,  60  Mo.  444 ;  Brawford  v.  Wolfe,  103  Mo.  391. 
15  S.  W.  426 ;  Hall  v.  Smith,  103  Mo.  2S9,  15  S.  W.  623 ;  Spratt  v. 
Ivawson,  176  Mo.  175,  75  S.  W.  642 ;  Kgger  v.  Egger,  225  Mo.  116,  123 
S.  W.  928,  1,35  Am.  St.  Rep.  566. 

3  Egger  V.  Egger,  225  Mo.  116,  123  S.  W.  928,  135  Am.  St.  Rep.  566. 

4  Young  V.  Boardman.  97  Mo.  181,  10  S.  W.  48;  Rannells  v.  Ger- 
ner,  80  Mo.  474. 


104  ELECTION    BY   WIDOW,  ETC.  §  HO 

It  seems  that  a  devise  of  real  estate  to  the  wife  as  long 
as  she  remains  a  widow,  the  rents  and  profits  to  be  used 
in  educating  the  children,  will  defeat  dower  unless  she  re- 
nounces the  devise.^  And  where  the  will  gave  all  his  prop- 
erty to  the  widow  for  life,  and  then  one-half  to  go  to  a  cer- 
tain church,  and  she  renounced  the  will,  being  without 
children,  and  elected  to  take  one-half  of  the  testator's  estate 
absolutely,  the  will  operated  on  the  other  half,  and  the 
church  took  one-fourth,  after  paying  the  debts.^ 

Form   of  Renunciation  of  Provisions  in  a   Will  in  Lieu  of 

Dozver 

In  the  Matter  of  the  Will^  ^^  ^^^  n-obate  Court  of  County, 

and     Estate     of     John  w     ^.^.^^^  ^^  Missouri  at  . 

Wells,  Deceased.  j 

I,  Barbara  Wells,  widow  of  John  Wells,  deceased,  late  of 

Count.v  and  State  of  Missouri,  do  by  this  act  and  deed  renounce 
and  refuse  to  accept  the  provisions  made  for  me  by  the  will  of  the 
said  John  Wells  proved  in  the  Probate  Court  of  the  said  county, 
wherein  he  devised  to  me  certain  real  estate,  to-wit:  [Here  describe 
the  real  estate]  of  which  he  was  seized,  or  in  which  he  had  an  in- 
terest at  the  time  of  his  death,  and  I  shall  and  do  insist  upon  my 
right  and  claim  of  dower  in  the  estate  of  the  said  John  Wells,  de- 
ceased. 

Witness  my  hand  and  seal  this day  of ,  A.  D.  19 — . 

Barbara  Wells. 

This  should  be  acknowledged  as  in  the  case  of  a  deed  for 
land  and  filed  in  the  court  where  the  will  is  recorded. 

This  provision  has  no  reference  to  personal  property,  but 
applies  only  to  real  estate.'^  That  is,  if  the  will  devise  real 
estate  to  her,  it  will  be  in  lieu  of  dower  in  the  real  estate, 
unless  the  will  otherwise  declare.  But  in  other  cases  a  pro- 
vision in  the  will  in  favor  of  the  wife  will  never  be  con- 
strued by  implication  to  be  in  lieu  of  dower  or  any  other  in- 
terest in  his  estate  given  by  law;  the  design  to  substitute 
the  one  for  the  other  must  be  unequivocally  expressed  in  the 
will.« 

If  a  childless  widow  renounces  the  will  and  elects  to  take 
half  the  estate  under  the  law,  she  ceases  to  be  a  doweress, 

5  Bogart  V.  Bogart,  138  Mo.  419,  40  S.  W.  91 ;  McKee  v.  Stuckey, 
181  Mo.  719,  81  S.  W.  IGO. 

6  Lilly  V.  Menke,  143  Mo.  137,  44  S.  W.  730. 

7  Bryant  v.  Christian,  58  Mo.  98 ;  Martian  v.  Norris,  91  Mo.  4G5, 
3  S.  W.  849. 

8  Hasenritter  v.  Hasenritter,  77  Mo.  162 ;  Ball  v.  Ball,  165  Mo. 
312,  65  S.  W.  5.52. 


§  110  ELECTION    BY    WIDOW,   ETC.  105 

and  as  an  ordinary  distributee  under  the  law,  she  is  not  enti- 
tled, under  the  terms  of  the  statute  giving  her  the  right  of 
election,  to  the  four  hundred  dollars  alUnved  to  the  widow.'' 
However,  should  a  widow  elect  to  take  a  child's  part,  she 
still  can  claim  her  widow's  allowance.^"  The  right  to  elect 
to  take  a  child's  part  or  half  the  estate  in  lieu  of  dower  de- 
pends upon  her  right  to  dower,  and  if  she  is  not  entitled  to 
dower  in  the  land  she  has  no  right  of  election. ^^  A  sub- 
sisting right  to  dower  is  not  a  prerequisite  to  the  right  to 
demand  the  four  hundred  dollars  allowed  to  the  widow  by 
statute,  and  the  widow  is  entitled  to  this  allowance  al- 
though she  accepts  a  devise  in  lieu  of  dower.^^ 

0  Griffith  V.  Canning,  54  Mo.  282 ;   Reid  v.  Porter,  54  Mo.  265. 

10  Hill  V.  Evjins.  114  Mo.  App.  715,  91  S.  W.  1022. 

11  Von  Arb  v.  Thomas,  16.3  Mo.  33,  63  S.  W.  94;    Payne  v.  Payne, 
119  Mo.  loo.  cit.  179,  24  S.  W.  781. 

12  Hill  V.  Evans,  114  Mo.  App.  715,  91  S.  W.  1022;   Lamar  v.  Belch- 
er, 154  Mo.  App.  571,  136  S.  W.  748. 


106  PEOBATE   COURTS,  JURISDICTION,  ETC.  §111 


CHAPTER  XIV 

OF  PROBATE  COURTS,  THEIR  JURISDICTION,  POWERS  AND 
INCIDENTAL  MATTERS 

§  111.  Probate  court — Its  jurisdiction  in  Missouri. 

112.  Jurisdiction  defined. 

113.  Courts  of  limited  jurisdiction. 

114.  Exclusive  jurisdiction. 

115.  No  jurisdiction. 

116.  In  habeas  corpus. 

117.  Petition  for  writ  of  habeas  corpus, 
lis.  Qualifications  of  probate  judge. 

119.  Election  or  appointment  of  special  judge  of  probate. 

120.  Judge  may  practice  law — When. 

121.  Judge  disqualified. 

122.  Probate  clerk — Appointment  and  duties. 

123.  Incidental  duties  of  the  probate  judge. 

124.  Expenses  of  maintaining  court. 

125.  Salaries. 

126.  Terms  of  court. 

127.  Powers  of  probate  court. 

128.  Process — How  issued  and  directed. 

129.  Docket  to  be  kept. 

130.  Penalty  for   refusal  of  judge,  or  clerk,   to  perform   official 

duties. 

131.  Fees  allowed  probate  court  in  Missouri. 

§  111.     Probate     Court — How     Created — Jurisdiction. — 

The  constitution  of  the  State  of  Missouri  declares  that  the 
general  assembly  shall  establish  in  every  county  a  probate 
court,  which  shall  be  a  court  of  record,  and  consist  of  one 
judge,  who  shall  be  elected.  A  probate  court  consisting  of 
one  judge,  has  been  established  in  the  City  of  St.  Louis  and  in 
every  county  in  the  state. ^  Said  court  shall  have  jurisdiction 
over  all  matters  pertaining  to  probate  business,  the  granting 
of  letters  testamentary  and  of  administration,  the  appointment 
of  guardians  and  curators  of  minors  and  persons  of  unsound 
mind,  settling  the  accounts  of  executors,  administrators,  cu- 
rators and  guardians,  and  the  sale  or  leasing  of  lands  by  ad- 
ministrators, curators  and  guardians;  and,  also,  jurisdiction 
over  all  matters  relating  to  apprentices.  Probate  courts 
shall  be  uniform  in  their  organization,  jurisdiction,  duties 
and  practice,  except  that  a  separate  clerk  may  be  provid- 

1  Constitution  of  Missouri,  art.  6,  §  .34;    Rev.  St.  1900,  §  40.j5  ;    AuU 
V.  St.  Louis  Trust  Co.,  149  Mo.  1,  50  S.  W.  2S9. 


§  113  PROBATE   COURTS,  JURISDICTION,  ETC.  107 

ed  for,  or  the  jufl,<j;e  may  be  required  to  act,  ex-officio,  as  his 
own  clerk.-  And  such  judges  shall  have  power  to  solemnize 
marriages.^ 

§  112.  Jurisdiction  Defined.— It  is  the  right  or  power 
to  hear  and  determine  the  sul)jcct  matter  of  a  suit,  proceeding 
or  controversy  by  a  court  or  judicial  tribunal.* 

There  are  three  essentials  to  it : 

1.  The  tribunal  must  have  cognizance  of  the  subject  matter 
or  class  of  cases  to  which  the  one  in  controversy  belongs;  it 
must  be  conferred  by  law  ;  consent  of  parties  litigant  cannot 
confer  it.-"'     lUit  objcctifm  to  the  venue  may  be  waived." 

2.  The  proper  parties  must  be  present  or  be  served  with 
process  or  notified  as  provided  by  law.  It  is  competent  for 
parties  to  voluntarily  appear  and  submit  to  the  jurisdiction  of 
the  court,  and  courts  often  acquire  jurisdiction  of  the  per- 
son in  that  way.  Where  the  service  of  process  is  wholly  in- 
sufficient and  unauthorized  by  law,  the  court  does  not  obtain 
jurisdiction  over  the  person  of  the  defendant,  but  if  the  pro- 
cess be  defective  or  the  service  irregular,  jurisdiction  attaches.^ 

3.  The  point  decided  or  matter  determined  must  be  within 
the  issues  or  within  the  scope  of  the  pleadings  or  proceedings.^ 

§  113.  Court  of  Limited  Jurisdiction. — The  probate 
court  has  such  jurisdiction  and  powers  only  as  are  conferred 
upon  it  by  law,  or  necessarily  incident  to  the  proper  exercise 
of  duties  which  are  directly  imposed  by  law,  and  it  must  ex- 
ercise its  jurisdiction  and  functions  in  the  manner  prescribed 

2  Const.  Mo.  art.  G,  §S  34  and  35. 
8  Key.  St.  inOO.  §§  S2S2  and  40.j6. 

4  state  ex  rel.  Scott  v.  Smith.  104  Mo.  410.  16  S.  W.  415;  Hope  v. 
Rlair.  105  Mo.  So.  16  S.  AV.  595,  24  Am.  St.  Rep.  360;  State  ex  rel. 
Johnson  v.  Withrow.  108  Mo.  1.  18  S.  W.  41;  State  ex  rel.  Walnut 
St.  Ry.  Co.  V.  Neville,  110  Mo.  345,  19  S.  W.  491;  Musick  v.  Kansas 
City  S.  &  M.  Rv.  Co.,  114  Mo.  309,  21  S.  W.  491 ;  Zcibold  v.  Foster, 
118  Mo.  349,  24  's.  W.  155 ;  St.  L.  &  S.  F.  R.  Co.  v.  Lowder,  138  Mo. 
533,  39  S.  W.  799.  00  Am.  St.  Rep.  565. 

5  Dowdy  V.  Wamble,  110  Mo.  280,  19  S.  W.  489;  Collier  v.  Wilson, 
56  Mo.  App.  420 ;  Giesins  v.  Sohowen«j;erdt,  24  Mo.  App.  554  ;  John- 
son V.  Detrick,  152  Mo.  243,  53  S.  W.  891;  Parker  v.  Zeisler,  139  Mo. 
298.  40  S.  W.  881. 

c  Johnson  v.  Detrick,  152  Mo.  245,  53  S.  W.  891. 

7  Leonard  v.  Sparks.  117  Mo.  103,  22  S.  W.  899,  3S  Am.  St.  Rep. 
646;  Laney  v.  Garhee,  105  Mo.  r?.55.  16  S.  W.  831.  24  Am.  St.  Rep. 
.S91;  Thompson  v.  Chicajjo,  S.  F.  &  C.  Ry.  Co.,  110  Mo.  147,  19  8. 
W.  77;  Coleman  v.  Farrar.  112  Mo.  54,  20  S.  W.  441;  Michael  v. 
Citv  of  St.  Louis,  112  Mo.  610,  20  S.  W.  666. 

s"lIope  V.  Blair,  105  >ro.  85,  16  S.  W.  .595.  24  Am.  St.  Rep.  366. 


108  PEOBATE   COURTS,  JURISDICTION,  ETC.  §  113 

by  statute.®  It  is  a  general  rule  that  the  jurisdiction  of  such 
a  court  will  not  be  a  matter  of  presumption,  but  the  record 
must  show  the  existence  of  all  the  facts  necessary  to  give 
the  court  jurisdiction,  both  of  the  person  and  of  the  subject 
matter.^" 

But  a  court  of  limited  jurisdiction  is  not  necessarily  of  in- 
ferior jurisdiction;  ^^  and  although  the  jurisdiction  and  powers 
of  courts  of  limited  jurisdiction  are  defined  and  prescribed  by 
statute,  and  all  their  acts  are  void  which  overstep  the  bound- 
aries of  the  statute/^  yet  when  such  a  court  once  possesses 
itself  of  a  case  within  its  jurisdiction,  and  such  fact  affirma- 
tively appears,  every  presumption  and  intendment  which  per- 
tains to  the  acts  of  courts  of  general  jurisdiction  immediately 
attach  with  equal  force  to  the  acts  of  the  inferior  tribunal, ^^ 
and  a  liberal  construction  will  be  given  to  its  acts  as  regards 
form  and  regularity  of  proceedings  within  its  jurisdiction.^* 
And  generally  jurisdictional  facts  may  be  proved  or  disproved 
by  evidence  aliunde,  for  the  purpose  of  sustaining  or  invalidat- 

9  In  re  Estate  of  Glover,  127  Mo.  153,  29  S.  W.  982 ;  Ivie  v.  Ewing, 
120  Mo.  App.  124,  96  S.  W.  481 ;  Jenkens  v.  Morrow,  131  Mo.  App. 
288,  109  S.  W.  1051. 

10  Coil  V.  Pitman's  Adin'r,  46  Mo.  51;  McCloon  v.  Beattie,  46  Mo. 
.391;  Hansberger  v.  Pacific  R.  Co.,  43  Mo.  196;  Powers  v.  Blakey's 
.\dna'rs.  16  Mo.  437 ;  State  ex  rel.  Renick  v.  St.  Tx)uis  County  Court, 
38  Mo.  402;  State  v.  Metzger,  26  Mo.  65;  Schell  v.  Leland,  45  Mo. 
289 :  Iba  v.  Hannibal  &  St.  J.  R.  Co.,  45  Mo.  469 ;  Ex  parte  O'Brien, 
127  Mo.  477,  30  S.  W.  158 ;  Patchen  v.  Durrett,  116  Mo.  App.  437,  92 
S.  W.  721;  Cunningham  v.  Pacific  R.  R.,  61  Mo.  33;  Gibson  v. 
Yaughan,  61  Mo.  418 ;  Haggard  v.  Atlantic  &  P.  R.  Co.,  63  Mo.  302 ; 
State  ex  rel.  Aull  v.  Shortridge,  56  Mo.  126;  Baldwin  v.  Wlutcomb, 
71  Mo.  651 ;    Colville  v.  .Judy,  73  Mo.  651. 

11  Brooks  V.  Duckworth,  59  Mo.  48;  State  v.  Schneider,  47  Mo. 
App.  669;  Young  v.  Boardman,  97  Mo.  181,  10  S.  W.  48;  Gordon 
V.  Eans,  97  Mo.  .587,  11  S,  W.  64;  Hammons  v.  Renfrew,  84  Mo.  .332; 
Warden  v.  Missouri,  K.  &  T.  Ry.  Co.,  78  Mo.  App.  604 ;  Sappingtou  v. 
Lenz,  53  Mo.  Ar;  .  44;  Wise  v.  Loring,  .54  Mo.  App.  258;  Corrigan  v, 
Morris.  43  Mo.  App.  456;  Michael  v.  City  of  St.  Louis,  112  Mo.  610, 
20  S.  W.  666 ;  Leonard  v.  Sparks,  117  :Mo.  103,  22  S.  W.  899,  38  Am. 
St.  Rep.  646 ;  Zeibold  v.  Foster,  118  Mo.  -349,  24  S.  W.  155 ;  Cox  v. 
Boyce,  152  Mo.  576,  54  S.  W.  467,  75  Am.  St.  Rep.  483 ;  Sherwood  v. 
Baker,  105  Mo.  loc.  cit.  475,  16  S.  W.  9.38,  24  Am.  St.  Rep.  .399. 

12  Jefferson  County  v.  Cowan,  54  Mo.  234;  City  of  St.  Louis  v. 
Koch.  169  Mo.  589,  70  S.  W.  143. 

13  Ellis  V.  Jones,  51  Mo.  ISO;  Brooks  v.  Duckworth,  59  Mo.  48; 
Johnson  v.  Beazley,  65  Mo.  250,  27  Am.  Rep.  276 ;  Cox  v.  Boyce,  152 
Mo.  576,  54  S.  W\  407,  75  Am.  St.  Rep.  483. 

14  Warden  v.  Missouri,  K.  &  T.  Ry.  Co.,  78  Mo.  App.  664 ;  Nichols 
V.  Reyburn,  55  Mo.  App.  1. 


§  114  PROBATE   COURTS,  JURISDICTION,  ETC.  109 

ing  tlie  proceedings  of  a  tribunal  of  special  and  limited  juris- 
diction/^ But  when  the  court  has  once  acquired  jurisdiction, 
the  only  competent  evidence  of  what  the  court  has  done  is  its 
record,  which  is  conclusive  as  against  any  parol  attack  in  a 
collateral  proceeding.^® 

§  114.  Exclusive  Jurisdiction,— iW here  a  court  is  given 
original  and  exclusive  jurisdiction  over  a  particular  matter  or 
subject,  as  to  hear  and  determine  all  suits  and  other  proceed- 
ings instituted  against  executors  or  administrators  upon  any 
demand  against  the  estate  of  a  testator  or  intestate,  no  other 
court  has  original  jurisdiction  of  such  demand.^' 

Formerly,  when  probate  courts  were  created  by  special  acts 
in  certain  counties  in  Missouri,  they  were  given  original  ex- 
clusive jurisdiction  over  probate  matters,  and  the  other  courts, 
of  course,  were  excluded.^® 

But  it  will  be  observed  that  neither  the  Missouri  constitu- 
tion nor  statute  confers  exclusive  jurisdiction  on  probate  courts 
as  to  the  matters  committed  to  said  courts ;  but,  as  the  pro- 
ceedings in  such  matters  are  authorized  and  governed  by  stat- 
ute, and  the  probate  court,  and  no  other,  is  invested  with  pow- 
er to  hear  and  determine  such  proceedings,  it  follows  that  as 
to  such  matters  its  jurisdiction  is  exclusive.^*  But,  of  course, 
a  court  of  general  jurisdiction,  possessing  chancery  ])owers, 
would  have  jurisdiction  of  such  proceedings  in  equity  in  rela- 
tion to  probate  matters,  as  belong  to  a  court  of  chancery,  such, 
for  instance,  as  a  suit  for  the  construction  of  an  ambiguous 
will ;  -°  or  to  substitute  a  surety  to  the  rights  of  a  creditor  in 
his  equity  against  an  estate ;  ^^  or  to  enforce  specific  perform- 
ance of  a  verbal  contract  by  deceased  for  the  sale  of  land;  ^- 

15  Willis  V.  vSproule.  13  Kan.  2G4. 

16  In  re  Watson.  .10  Kan.  753,  1  Pac.  775;  Missouri,  K.  &  E.  Ry. 
Co.  V.  Iloeretli,  144  Mo.  1.3G.  45  S.  W.  10S5;  Cox  v.  Boyce,  152  Mo. 
576,  54  S.  W.  467.  75  Am.  St.  Rep.  483. 

17  Pearce  v.  Calhoun,  59  Mo.  271;    Dodson  v.  Scroggs,  47  Mo.  2S5. 
isPearce  v.  Calhoun.  50  Mo.  271;    Caldwell  v.  Hawkins,  73  Mo. 

450 ;    Ensworth  v.  Curd,  6S  Mo.  282 ;    Dodson  v.  Scroggs,  47  Mo.  285. 
loGarnett  v.  Carson,  11  Mo.  App.  290. 

20  First  Baptist  Church  v.  Robberson.  71  Mo.  326;  Clark  v.  Hen- 
ry's Adm'r,  9  Mo.  340;  Bredell  v.  Collier,  40  Mo.  287:  Jamison  v. 
Hay.  46  Mo.  546;  Wager  v.  Wager,  89  N.  Y.  161;  Hamer  v.  Cook, 
lis  Mo.  476,  24  S.  W.  180;  Citizen.s*  State  Bank  v.  Petti t,  85  Mo. 
App.  499 ;  Clark  v.  Carter.  200  Mo.  515,  98  S.  W.  594. 

21  Miller  v.  Woodward.  8  Mo.  169. 

22  Sehulter's  Adm'r  v.  Bocku-inkle's  Adm'r,  19  Mo.  647;  Davidson 
V.  I.  M.  Davidson  Real  Estate  &  Investment  Co.,  226  Mo.  1.  125  S. 
W.  1143,  136  Am.  St.  Rep.  615. 


110  PROBATE   COURTS,  JURISDICTION,  ETC.  §  114 

or  to  convey  by  will;  -^  or  to  compel  an  executor  to  execute  a 
trust  under  a  will ;  '*  or  make  a  deed  pursuant  to  a  sale  under 
a  will ;  ^°  or  a  suit  to  enforce  an  equitable  charge  against  land 
of  deceased ;  -*^  or  to  order  the  sale  of  land  belonging  to  mi- 
nors.-^ 

As  a  general  rule,  a  mere  grant  of  jurisdiction  to  a  partic- 
ular court  without  words  of  exclusion  as  to  other  courts  pre- 
viously possessing  the  like  powers,  will  only  have  the  effect  of 
constituting  the  former  a  court  of  concurrent  jurisdiction  with 
the  latter.-**  And  though  other  courts  may  have  jurisdiction 
of  a  suit  on  an  administration  bond  or  of  other  matters  in- 
volved in  the  administration  of  an  estate,  yet,  when  the  pro- 
bate court  has  ample  power  in  the  premises,  actions  in  other 
courts  should  not  be  encouraged. ^^ 

§  115.  No  Jurisdiction. — The  probate  court  does  not 
possess  general  chancery  powers,  and  it  has  no  jurisdiction 
of  actions  and  proceedings  purely  equitable,  and  peculiarly 
cognizable  in  courts  of  equity,  such  as  a  suit  to  foreclose  a 
vendor's  lien  against  land  belonging  to  the  deceased,^"  or  in 
favor  of  the  estate  against  land  sold  by  deceased  in  his  life- 
time.^^  or  a  suit  in  equity  to  follow  trust  funds  in  the  hands 
of  an  administrator  of  a  deceased  trustee,^-  or  to  enforce  an 
equitable  lien  against  land,^^  or  to  impeach  a  conveyance  made 
by  the  deceased  to  defraud  his  creditors, •''*  or  of  a  claim  against 
the  estate  of  a  deceased  married  woman,  for  which  her  sep- 

2  3  Hiatt  V.  Williams,  72  Mo.  214,  37  Am.  Rep.  438. 

2  4  Mead  v.  Jennings,  46  Mo.  91. 

2  5  Coil  V.  Pitman's  Adm'r,  46  Mo.  51. 

26  Clark  V.  Henry's  Adm'r,  9  Mo.  340;  Byerly  v.  Donlin,  72  Mo. 
270. 

2  7  Hamer  v.  Cook,  118  Mo.  476,  24  S.  W.  180. 

28  Wood  V.  Ellis,  10  Mo.  3S3 ;  State  v.  Martin.  10  :Mo.  .392;  Hamer 
V.  Cook,  118  Mo.  476,  24  S.  W.  180 ;  Miller  v.  Woodward,  8  Mo.  169 ; 
State  ex  rel.  Renick  v.  St.  Louis  County  Court,  38  Mo.  402;  Rich- 
ardson v.  Palmer,  24  Mo.  App.  480. 

2  9  Stratton  v.  MeCandless,  27  Kan.  296. 

30  Ross  V.  .Tulian,  70  Mo.  209 ;  Mt.  Olive  &  St.  L.  Coal  Co.  v.  Slev- 
in's  Estate,  56  Mo.  App.  107. 

31  Leeper  v.  Lyon,  68  Mo.  216;  Perry's  Adm'rs  v.  Roberts,  23  Mo. 
221 ;    Ivie  v.  Ewing,  120  Mo.  App.  124,  96  S.  W.  481. 

3  2  Butler  V.  Lawson,  72  Mo.  227;  Jenkins  v.  Morrow,  131  Mo. 
App.  288,  109  S.  W.  1051. 

33  Trustees  of  General  Assembly  of  Presbyterian  Church  of  the 
U.  S.  V.  McElhinney,  61  Mo.  540. 

34  Brown's  Adm'r  v.  Finley,  18  Mo.  375;  George  v.  Williamson, 
26  Mo.  190,  72  Am.  Dec.  203 ;    Merry  v.  Fremon,  44  Mo.  518 ;    Zoll  v. 


§  115  PROBATE   COURTS,  JURISDICTION,  ETC.  HI 

arate  estate  is  alone  bound  in  equity, ^^  or  of  a  suit  to  set  aside 
a  final  settlement  for  fraud  ;  •'"  or  of  a  suit  to  enforce  an  equi- 
table charge  against  real  estate  of  deceased ;  ^^  nor  has  it  juris- 
diction of  an  action  on  an  administrator's  bond,^*  though  it 
has  jurisdiction  of  a  special  proceeding  under  the  statute 
against  a  former  administrator  and  his  sureties  to  recover  as- 
sets.^® The  proceeding  permitted  by  the  statute  to  discover 
alleged  withheld  or  concealed  assets  is  a  summary  method  of 
bringing  property  into  the  estate,  but  was  formerly  held  not  to 
be  available  for  the  trial  of  property  rights,  and  later  decisions 
expressly  hold  that  the  right  of  property  may  be  tried  in  such 
proceedings.'*'*  Appeal  lies  from  the  decision  of  the  probate 
court  determining  the  rights  of  the  parties.*^ 

But  while  the  probate  court  possesses  no  general  chancery 
powers,*-  yet  in  the  settlement  of  estates  it  may  exercise  pow- 
ers and  jurisdiction  formerly  exercised  only  by  courts  of  chan- 
cery— such  as  were  formerly  exercised  in  England  by  the 
ecclesiastical  and  chancery  courts. •'^^  It  has  full  control  and 
ample  jurisdiction  to  pass  upon  and  adjust  all  matters  involved 
in  the  administration  of  an  estate."  But  the  parties  cannot 
confer  jurisdiction  by  consent  over  the  subject  matter  of  a 

.Soper,  75  Mo.  4C(» ;  Hall  v.  Farniors"  &  :Merch:uits'  Bank.  14.')  Mo. 
418,  4G  S.  W.  1000;  Jeukiiis  v.  Morrow,  131  Mo.  App.  2SS,  109  S. 
W.  1051. 

3  5  Davis  V.  Smith,  75  Mo.  219. 

3  6  Ryerly  v,  Donlin,  72  Mo.  270. 

3  7  Trustees  of  General  Assembly  of  Presbyterian  Cliurch  of  the 
U.  S.  V.  McEJhinney,  61  Mo.  540;  Ivie  v.  Ewing,  120  Mo.  App.  124, 
96  S.  W.  481. 

3  8  state  ex  rel.  Lon^don  v.  Shelby,  75  Mo.  48.*];  State,  to  T'se  of 
Hunter,  v.  Maulsby,  53  Mo.  500 ;  State  ex  rel.  Shinu  v.  Stafford,  73 
Mo.  658. 

30  Rev.  St.  1909.  §§  70-74;    Brown  v.  Weatherby,  71  Mo.  152. 

4  0  Gordon  v.  Eans,  97  :Mo.  587,  4  S.  W.  112. 

4iTyi?ard  v.  Falor,  103  IMo.  234,  63  S.  W.  672;  In  re  Estate  of 
Huffman.  132  Mo.  App.  44,  111  S.  W.  848;  In  re  Clinton's  Estate. 
223  Mo.  371.  123  S.  W.  1. 

4  2Tru.stees  of  General  Assenibly  of  Presbyterian  Church  of  the 
U.  S.  v.  McElhinney.  61  Mo.  540;  Ivie  v.  Ewini:.  120  Mo.  App.  124. 
96  S.  W.  481 ;  Jenkins  v.  Morrow.  131  :Mo.  App.  288,  109  S.  W.  1051  ; 
In  re  E.state  of  Glover,  127  Mo.  1.53.  29  S.  W.  982. 

4  3  Pear ce  v.  Calhoun,  59  Mo.  271;  Tittorington  v.  Hooker.  58  Mo. 
593 ;  Ensworth  v.  Curd,  68  Mo.  282 ;  MilU'r  v.  Iron  County.  29  Mo. 
122;  Mt.  Olive  &  St.  L.  Coal  Co.  v.  Slevin's  Estate,  56  Mo.  App. 
107 ;    Nichols  v.  Reyburn.  55  Mo.  App.  1. 

44  Pearson  v.  Haydel,  87  Mo.  App.  495;  Stowe  v.  Stowe,  140  Mo. 
594.  41  S.  W.  951. 


112  PEOBATB   COURTS,  JURISDICTION,  ETC.  §  116 

controversy  where  it  has  not  been  given  by  law.*'  It  may  en- 
tertain a  proceeding  to  construe  a  will  and  order  distribution.**^ 
It  is  not  necessary  that  the  record  of  the  proceedings  in  the 
probate  court  should  affirmatively  show  all  jurisdictional  facts, 
for  as  to  matters  witliin  the  exclusive  jurisdiction  of  that 
court,  its  orders  and  judgments  are  entitled  to  the  same  pre- 
sumptions and  intendments  as  are  those  of  courts  of  general 
jurisdiction.*"  It  has  power  over  its  judgments  during  the 
whole  of  the  term  at  which  they  are  rendered  or  given.*"* 

§  116.  In  Habeas  Corpus. — Neither  the  constitution  nor 
the  statutes  defining  the  jurisdiction  of  the  probate  court  in 
Missouri  expressly  authorize  it,  or  the  judge,  to  issue  the 
writ  of  habeas  corpus.  The  principal  object  in  creating  that 
tribunal  was  to  provide  a  means  for  the  disposition  of  the 
matters  enumerated  in  the  constitution,  and  which  relate  to 
the  administration  of  estates  in  guardianships ;  but  there  is 
nothing  in  the  constitution,  no  words  of  restriction,  to  pre- 
vent the  legislature  from  conferring  upon  the  judge  of  that 
court  other  duties,  powers  and  functions.  Therefore  the  leg- 
islature has  constituted  the  judge  a  conservator  of  the  peace, 
and  authorized  him  to  let  to  bail  any  party  indicted  for  a  bail- 
able offense  in  the  county  in  which  the  indictment  is  pend- 
ing,*^ or  when  committed  by  a  magistrate ;  ^°  and  as  a  magis- 
trate (judge  of  a  court  of  record)  he  may  issue  process  for  the 
apprehension  of  criminals,  and  hold  them  to  bail,  and  require 
persons  to  give  surety  to  keep  the  peace;  ^^  and  he  may  solem- 
nize marriages. ^^  None  of  these  things  have  any  connection 
whatever  with  the  subjects  mentioned  as  within  the  jurisdic- 
tion of  the  probate  court,  but  are  matters  over  which  the  leg- 
islature has  entire  and  unlimited  control,  and  might  authorize 

45  Lndd  V.  Torsee,  163  Mo.  506,  63  S.  W.  831. 

4  6  Hamilton  v.  Lewis,  13  Mo.  18.5;  Dyer  v.  Carr's  Ex'r,  18  Mo. 
246;  Overton  v.  Davy's  Ex'r,  20  Mo.  273;  Rose  v.  McHose's  Ex'rs. 
26  Mo.  .590;  Bryant  v.  Christian,  58  Mo.  98;  Allison  v.  Chaney,  63 
Mo.  279 ;  Kenrick  v.  Cole,  46  Mo.  85 ;  Rocheport  Bank  v.  Doak,  75 
Mo.  App.  3.32 ;  State  ex  rel.  Board  of  Education  of  St.  Louis  v.  Nast, 
209  Mo.  708,  108  S.  W.  563. 

4  7  Cox  V.  Boyce,  152  Mo.  576,  54  S.  W.  467,  75  Am.  St.  Rep.  483; 
Aull  V.  St.  Louis  Trust  Co.,  149  Mo.  1,  50  S.  W.  289 ;  In  re  Tucker, 
74  Mo.  App.  .331 ;   In  re  Ilesche's  Estate,  73  Mo.  App.  612. 

4  8  Aull  V.  St.  Louis  Trust  Co.,  149  Mo.  1,  50  S.  W.  289. 

4  9  Rev.  St.  1909.  §  40<J1;    State  v.  McElhaney,  20  Mo.  App.  584. 

60  Rev.  St.  1909,  §  .5048. 

81  Rev.  St.  1909,  §  49.54;  Rev.  St.  1909,  §  5021. 

B2  Rev.  St.  1909,  §  4056. 


§  116  PROBATE    COURTS,  JURISDICTION,   ETC.  113 

any  officer  or  functionary  to  perform.  The  writ  of  habeas 
corpus  is  "a.  great  constitutional  writ  of  liberty,"  and  can  nev- 
er be  suspended.""'  But  the  constitution  does  not  prescribe  the 
mode  of  procedure,  nor  define  the  circumstances  under  which 
the  writ  may  issue,  nor  designate  what  courts  or  officers  shall 
have  power  to  issue  it,  except  the  supreme  court. ^*  It  follows 
that  the  power  to  issue  the  writ,  and  the  circumstances  under 
which  it  may  be  issued,  and  the  practice  in  relation  to  it  are 
matters  within  the  control  of  the  legislature,  unless  we  con- 
clude that  inasmuch  as  the  constitution  authorizes  the  su- 
preme court  to  issue  the  writ,  and  does  not  expressly  give  to 
any  other  court  or  oiiicer,  all  other  courts  and  officers  are  ex- 
cluded, which  is  not  the  case.^'  The  habeas  corpus  act  pro- 
vides for  the  whole  subject,  empowers  any  court  of  record,  or 
any  judge  of  such  court  in  vacation,  to  issue  the  writ  with  cer- 
tain restrictions  and  f|ualifications  as  to  the  circumstances  and 
cases  in  which  it  may  be  issued.  The  proceeding  is  not  brought 
within  the  peculiar  jurisdiction  and  practice  of  any  court,  but 
is  the  subject  of  independent  and  special  legislation,  and  it 
would  seem  that  the  legislatiire  might,  in  the  absence  of  ex- 
press constitutional  inhibition,  invest  any  court  or  officer  with 
power  to  issue  the  writ  and  dispose  of  it  under  the  law.  The 
probate  court  is  a  court  of  record,  and  all  courts  of  record 
and  judges  thereof  in  vacation,  are  expressly  authorized  to 
issue  the  writ  of  habeas  corpus,  etc.^°  A  probate  judge  may 
be  invested  with  judicial  powers  other  than  those  granted  by 
the  constitution  to  the  probate  court.^'^  Neither  the  state  courts 
nor  the  judges  thereof  have  jurisdiction  or  power  to  discharge 
prisoners  held  by  the  authority  of  the  federal  courts  or  com- 
missioners or  officers  of  the  United  States  acting  under  the 
laws  thereof,  whether  the  judgments  or  orders  by  which  they 
are  held  are  legal  or  not.'^ 

The  writ  of  habeas  corpus  affords  a  remedy  to  a  parent  seek- 
ing to  obtain  possession  of  his  or  her  child  when  it  is  held 

6  3  Coust  art.  2,  §  26. 

5  4  Const,  art.  6,  §  12. 

65  Ex  parte  Jilz,  64  ]Mo.  205,  27  Am.  Rep.  218;  Ex  parte  Bethurum, 
66  Mo.  545;  State  v.  Millsaps,  69  Mo.  359;  Hamer  v.  Cook.  118  Mo 
476.  24  S.  W.  180. 

6  6  Rev.  St.  1909.  §  2442;    State  v.  Millsaps.  09  Mo.  859. 

67  Young  V.  Ledriok,  14  Kan.  92;    lu  re  Johnson,  12  Kan.  102. 
5  8  In  re  Copenhaver,  118  Mo.  377,  24  S.  W.  101,  40  Am.  St.  Rep. 
382. 

Kel.Mo.P.G.— 8 


114  PROBATE   COURTS,  JURISDICTION,  ETC.  §  116 

by  another  unlawfully  and  the  restraint  complained  of  is  more 
than  a  mere  moral  restraint. •''''••  If  the  controversy  be  between 
husband  and  wife  for  the  custody  of  their  children  under  four- 
teen years  of  age,  and  the  party  against  whom  the  proceeding- 
is  had  is  unfit  to  have  the  control  of  the  children,  the  court 
may  award  the  care  and  custody  of  the  said  children  to  the 
complainant  or  other  guardian,  as  deemed  best.*'"  The  writ 
may  be  granted  in  favor  of  parents,  guardians,  masters  and 
husbands,  and  to  enforce  the  rights,  and  for  the  protection  of 
infants  and  insane  persons."^ 

The  proceeding  concerning  the  custody  of  children  is  of 
an  equitable  nature,  and  the  court  should  regard  the  welfare 
of  the  children,  taking  into  consideration  their  ages,  sex  and 
p-hysical  condition  as  well  as  the  character  and  ability  of  the 
parents  to  provide  and  care  for  them,  in  awarding  their  cus- 
tody." The  general  rule  is  that  when  one  court  has  acquired 
jurisdiction  of  the  parties  and  subject  matter  of  the  suit,  as 
in  a  divorce  suit,  in  allowing  the  custody  of  children  other 
courts  will  not  interfere  by  this  writ  while  the  suit  is  pending 
and  undetermined.*'^  A  decision  upon  the  merits  in  one  case 
would  be  a  bar  to  another  proceeding  on  the  same  state  of 
facts."* 

§  117.  A  petition  for  a  writ  of  habeas  corpus  must  state 
the  facts  which  constitute  the  illegal  restraint,  and  not 
merely  assert  that  the  petitioner  is  illegally  restrained  of 
his  liberty;  and  if  it  be  for  alleged  want  of  probable  cause, 
it  should  set  forth  all,  or  the  legal  eft'ect,  of  the  testimony 
taken  before  the  examining  magistrate.''^ 

B9Dowling  V.  Todd,  26  Mo.  267. 

60  Rev.  St.  1909,  §  2510;  In  re  Nofsinger,  25  Mo.  App.  116;  Camp- 
bell V.  Campbell,  76  Mo.  App.  396;  In  re  Doyle,  16  Mo.  App.  159; 
West  V.  West,  94  Mo.  App.  683,  68  S.  W.  753 ;  In  re  Morgan,  117  Mo. 
249,  21  S.  W.  1122. 

61  Rev.  St.  1909,  §  2441. 

62  Campbell  v.  Campbell,  76  Mo.  App.  396;  West  v.  West,  94  :Mo. 
App.  683,  68  S.  W.  753. 

63  Id  re  Morgan,  117  Mo.  249,  21  S.  W.  1122;  In  re  Delano,  37 
Mo.  App.  185. 

64  Weir  v.  Marley,  99  Mo.  484,  12  S.  W.  798,  6  L.  R.  A.  672 ;  Ex 
parte  Turner,  36  Mo.  App.  75. 

65  State  ex  rel.  Distin  v.  Ensign,  13  Neb.  250,  13  N.  W.  216 :  In 
re  Snyder.  17  Kan,  553 ;  State  ex  rel.  Walker  v.  Dobson,  135  Mo.  1, 
36  S.  "w.  238. 


§  118  PROBATE   COURTS,  JURISDICTION,  ETC.  Hi 


Pcdtioji  for  Writ  of  Habeas  Corpus  "" 
.State  of  Missouri,  )  Before  P.  .fiercer,  Probate  Judge  of  said  County, 


^1 


County.     I     in  vacation. 


To  the  Honorable  P.  Mercer,  Probate  Judi^c  of  said  County: 

Your  petitioner,  A.  B.,  re-spect fully  showeth  that  he  has  been  ar- 
rested and  imprisoned  by  C.  D.,   sheriff  of  said  county  of  , 

on  a  charge  of  (here  set  forth  the  cause  of  capture  and  detention), 
and  is  now  detained  in  the  custody  of,  and  restrained  of  his  liberty 
by,  the  said  C.  D.,  at  the  common  jail  of  .said  county  (or  other  place, 
as  the  case  may  be);  that  his  restraint  and  imprisonment  are  un- 
just and  illegal,  as  he  conceives  and  believes,  in  this,  to  wit:  (Here 
state  the  grounds  of  illegality  at  length.)  He  further  states  that 
no  application  for  the  relief  here  sought  by  your  petitioner  has  been 
made  to  or  refused  by  any  court,  officer  or  otticers  superior  to  the 
probate  court  or  the  judge  thereof.  (If  the  restraint  is  by  virtue 
of  a  warrant,  order  or  process,  a  copy  thereof  nmst  accompany  the 
I»etition.  or  it  must  appear  by  allidavit  that  demand  has  been  made 
for  it  of  the  person  having  petitioner  in  custody,  and  such  copy 
refused.) 

Your  petitioner  therefore  prays  your  honor  to  grant  him  a  writ 
of  habeas  corpus,  directed  to  the  said  C.  D.,  connnanding  him  forth- 
with to  have  your  petitioner  before  your  honor,  together  with  cause 
of  his  restraint  and  imi)risonment ;  that  this  case  may  be  exam- 
ined and  right  and  justice  be  done  in  the  premises ;  and  your  peti- 
tioner will  ever  pray,  etc.  A.  B. 

A.  B.,  the  above  petitioner,  makes  oath  and  says  that  the  facts 
set  forth  in  the  above  petition  are  true.  A.  B. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — . 

P.  Mercer,  Probate  Judge. 

The  writ  stands  in  the  place  of  the  petition  and  must 
contain  a  statement  of  the  facts  as  set  forth  in  the  petition, 
and  the  return  must  be  responsive  to  the  writ  and  not  to 
the  petition  upon  which  it  was  issued.®'^  The  answer  must 
respond  to  the  writ,  and  the  facts  stated  in  the  writ,  if  not 
denied  by  the  answer,  will  be  taken  as  true. 

§  118.  Qualifications  of  Probate  Judge. — The  qualifica- 
tions required  of  a  probate  judge  and  a  judge  of  the  county 
court  are  the  same.  Every  judge  of  probate  must  have, 
at  the  time  of  his  election,  attained  the  age  of  twenty-four 
years,  and  shall  have  been  a  citizen  of  the  United  States 
four  years,  and  shall  have  been  a  resident  of  the  county  in 
which  he  may  l)e  elected  for  one  year  next  preceding  his 
election.®^     The  statute  provides  that   e\ery   four  years  a 

68  Rev.  St.  1909,  §  2442. 

«7  Ex  parte  Durbin.  102  ^lo.  100,  14  S.  W.  S21. 

6  8  Rev.  St.  1909,  ^  384.3. 


116  PROBATE    COURTS,  JURISDICTION,  ETC.  §119 

judge  of  probate  shall  be  elected  by  the  qualified  voters  in 
every  county.  Like  other  judges  of  courts  of  record  he 
shall  be  commissioned  by  the  governor,  and  shall  enter 
upon  his  duties  the  first  day  of  January  ensuing  his  elec- 
tion, and  continue  in  office  four  years,  or  until  his  successor 
is  duly  elected  and  qualified.^* 

§  119.  Election  or  Appointment  of  Special  Judge  of  Pro- 
bate.— If  the  probate  judge  is  unable  for  any  cause  to  hold 
any  term  or  part  of  term  of  court,  the  attorneys  of  the  court 
who  are  present,  but  not  less  in  number  than  five,  may  elect 
one  of  their  members  then  in  attendance,  having  the  quali- 
fications of  a  judge  of  probate,  to  hold  the  court  for  the 
occasion,  or  to  hold  the  court  for  a  part  of  a  term.'"  If 
there  be  a  clerk  of  the  court,  he  shall  hold  the  election  and 
enter  the  proceedings  of  such  election  on  the  probate  rec- 
ords of  that  day.  If  there  be  no  clerk,  the  sheriff  of  the 
county  shall  perform  these  duties.  The  special  judge  shall 
take  and  subscribe  the  same  oath  the  judge  of  probate  is 
required  to  take,  and  shall  assume  the  same  responsibilities 
and  be  entitled  to  the  same  fees.'^ 

There  is  also  lodged  in  the  governor  the  power  to  ap- 
point a  special  judge  of  probate  when  the  regular  judge, 
•from  continued  sickness  or  mental  or  physical  inability,  is 
unable  to  discharge  his  duties.  When  the  appointment  is 
made  by  the  governor,  the  special  judge  shall  hold  office 
until  the  governor  is  satisfied  by  competent  evidence  the 
regular  judge  is  conipetent  in  all  respects  to  act  as  judge. '- 
§  120.  Judge  May  Practice  Law — When. — The  judge  of 
probate,  in  any  county  of  less  than  fifty  thousand  inhab- 
itants, if  otherwise  qualified,  may  practice  as  an  attorney 
or  counselor  at  law,  in  any  of  the  courts  of  the  state  except 
his  own.'^  It  is  unlawful  for  the  probate  judge  of  a  county 
having  a  population  of  fifty  thousand  inhabitants,  or  more, 
to  practice,  or  act  as  counselor  or  attorney  in  his  own  name, 
or  in  the  name  of  any  other  person,  in  any  of  the  courts 
of  this  state  during  the  term  of  office  for  which  he  shall 
have  been  appointed  or  elected.'*     In  any  county  it  is  un- 

6  9  Rev.  St.  1909,  §  4057. 

7  0  Section  4074a,  Rev.  St.  1909,  as  added  by  Laws  1911,  p.  188. 
71  Section  4074b,  Rev.  St.  1909,  as  added  by  Laws  1911,  p.  188. 
7  2  Section  4074e,  Rev.  St.  1909,  as  added  by  Laws  1911,  p.  189. 

7  3  Rev.  St.  1909,  §  4063.     See  Laws  1911,  p.  189. 
74  Laws  1911,  p.  189. 


§  121  PROBATE   COURTS,  JURISDICTION,  ETC.  117 

lawful  for  the  probate  judge  to  act  as  attorney,  or  have  any 
partner  as  attorney,  in  any  cause  originating  in  said  court, 
or  in  which  cither  party  is  or  has  been  executor,  admin- 
istrator, guardian  or  curator  of  an  unsettled  estate  under 
administration  in  his  courtJ'^ 

§  121.     Judge  Disqualified.— The  regular  judge  of  pro- 
bate cannot  sit  in  a  case  in  which  he  is  interested,  or  in 
which  he  may  have  been  counsel,  or  a  material  witness,  or 
related  to  either  party,  or  in  the  determination  of  any  cause 
or  proceeding  in  the  administration  or  settlement  of  any 
estate  of  which  he  is  or  has  been  executor,  administrator 
or  guardian  or  curator,  when  any  person  interested  shall 
object  in  writing  verified  by  affidavit.     When  an  objection 
is  so  made,  the  cause  must  be  certified  to  the  county  or  cir- 
cuit court,  which  shall  hear  and  determine  the  same;   and 
its  clerk  shall  deliver  to  the  probate  court  a  transcript  of 
the  judgment,  order  or  decree  made  in  the  case/«     The 
judge  may  transfer  cause  to  circuit  court  of  his  own  mo- 
tion where  ground  for  disqualification  exists  and  no  writ- 
ten objection  is  made."    The  certificate  in  all  cases  should 
state  the  facts  constituting  the  disqualification  and  cause 
for  transfer.'^    The  judge  or  clerk  of  a  probate  court  should 
not  draw  or  witness  any  will,  or  make  any  settlement  over 
which  such  court  may  have  jurisdiction.     The  acceptance 
of  the  office  of  judge  of  probate  shall  operate  as  a  revoca- 
tion of  all  letters  testamentary  and  of  administration  and 
of  guardian  or  curatorship,  held  by  him  at  the  time  of  his 
election,  and  disqualify  him  from  acting  in  any  such  capacity 
in  such  cases  in  any  court  of  this  state.' ^     A  change  of 
venue  does  not  lie  from  the  probate  court,  but  for  any  of 
the   dis(iualifying  causes,  the   case  or  proceeding  may   be 
certified  to  the  county  or  circuit  court.^"    The  probate  judge 
cannot  pass  upon  an  affidavit  setting  up  facts  constituting 
grounds  for  disqualification,  but  must  certify  the  cause  to 
the  county  or  circuit  court." 

7  5  Rev.  St.  1909,  §  4063. 

7c  Rev.  St.  1909,  §  4063. 

7  7  lu  re  Albert's  Estate.  80  Mo.  App.  557. 

7  8  Morris  v.  I>ane,  44  Mo.  App.  1. 

7  0  Rev.  St.  1909,  §  4063. 

8  0  Morris  v.  Lane,  44  Mo.  App.  1.  „  ^   .„^   ^/^o-. 
SI  State  ex  rel.  Latiinor  v.  Gray,  100  Mo.  App.  98.  72  S.  W.  1081 : 

Ansley  v.  Richardsou.  \)T>  Mo.  App.  332.  08  S.  W.  609;    State  ex  rel. 

Henson  v.  Sbeppard,   192  Mo.  497.  91  S.  W.  477. 


118  PROBATE   COURTS,  JURISDICTION,  ETC.  §  122 

§  122.  Clerk  of  Probate  Court.— The  judge  is  required 
to  act,  ex-officio,  as  his  own  clerk.  He  may,  however,  by 
entry  of  record,  appoint  a  separate  clerk,  who  must  be  paid 
by  the  judge,  and  will  hold  his  office  at  the  pleasure  of  the 
judge.  The  clerk  must  take  the  oath  required  of  other 
clerks  of  courts,  and  enter  into  a  bond.  When  so  appointed 
and  qualified,  he  may  discharge  all  the  duties  of  clerk,  and 
will  have  power  and  authority  to  do  and  perform  all  acts 
and  duties  in  vacation  which  the  judge  of  said  court  may 
perform  in  vacation,  subject  to  the  confirmation  or  rejec- 
tion of  said  court  at  the  next  regular  term  held  thereafter.^' 
And  where  probate  court  is  held  at  more  than  one  place  in 
the  county,  the  judge  may,  by  entry  of  record  at  either  or 
each  of  said  places,  appoint  a  separate  clerk  for  either  or 
each  of  said  places  who  shall  be  paid  by  the  judge  and  hold 
his  office  at  the  pleasure  of  the  judge,  and  must  qualify  and 
give  bond,  and  may  perform  the  duties  as  prescribed  by 
law.^^ 

A  section  is  incorporated  in  the  statute  having  special 
reference  to  the  city  of  St.  Louis  which  provides  that  in 
cities  having  three  hundred  thousand  inhabitants,  or  over, 
the  office  of  probate  clerk  shall  be  filled  by  election."* 

§  123.  Incidental  Duties  of  the  Probate  Judge. — When- 
ever the  judges  of  the  county  court  or  a  majority  of  them 
shall  not  be  able  to  hold  any  term  of  that  court  (by  reason 
of  sickness,  absence  or  other  cause)  the  probate  judge  of 
that  county  may  hold  said  term  of  court  and  receive  there- 
for the  same  compensation  as  a  judge  of  the  county  court, 
l)Ut  he  will  have  no  power  to  levy  taxes  except  for  ordinary 
county  expenditures,  and  for  support  of  the  common 
schools. ^^ 

§  124.  Expenses  of  Maintaining  Court. — Every  probate 
court  shall  have  an  official  seal  of  some  suitable  device, 
and  the  neces.-ary  expenses  incurred  by  the  court  for  books, 
stationery,  furniture,  fuel,  and  other  necessaries,  must  be 
paid  by  the  county  court.*''  It  has  been  held  that  postage 
is  included  in  this  requirement,  and  must  be  supplied  by 
the  county  court."  This  court,  at  the  expense  of  the 
county,  must  also  provide  for  the  judge  of  probate  an  of- 

8  2  Rev.  St.  1009,  §  40.j!).  8*  Rev.  St.  1900,  §  4072. 

8  3  Rev.  St.  1909.  §  4071.  s^  Rev.  St.  1009,  §§  4001,  40G2. 

86  Rev.  St.  1909.  §§  400."),  4066. 

8  7  Sayler  v.  Nodaway  County,  159  Mo.  520,  60  S.  W.  10.^7. 


§  126  PROBATE   COURTS,  JURISDICTION,   ETC.  119 

fice  at  the  county  seat  except  in  counties  where  such  courts 
for  the  transaction  of  probate  business  are  held  at  a  place 
other  than  the  county  seat,  and  in  these  counties  the  court 
must  also  keep  an  office  at  the  place  where  courts  are  held, 
and  keep  there  all  the  books,  records,  and  papers  pertain- 
ing to  the  business  transacted,  and  the  seal  of  said  court,*^ 

§  125.  Salaries. — The  probate  judge  is  entitled  to  re- 
cei\'e  out  of  the  fees  collected  by  his  office  a  yearly  salary 
ecjual  to  the  annual  compensation  provided  by  law  for  a 
judge  of  the  circuit  court  having  jurisdiction  in  the  same 
county.  The  probate  judge  is  empowered  to  deduct  out 
of  the  fees  collected  by  him  in  addition  to  his  salary  all 
reasonable  and  necessary  expenses  for  clerk  hire.  The  pro- 
bate clerk  receives  his  salary  from  the  probate  judge. ^" 
In  counties  containing  a  city  of  seventy-five  thousand  in- 
habitants, and  less  than  two  hundred  thousand  inhabitants, 
the  judge  of  the  probate  court  shall  receive  a  salary  of 
three  thousand  dollars  per  annum  to  be  paid  in  monthly 
installments  by  a  warrant  drawn  upon  the  county  treasury. 
In  such  counties  the  probate  clerk  shall  receive  twelve  hun- 
dred dollars  per  year  to  be  paid  in  the  same  manner.  All 
fees  authorized  by  law  are  to  be  collected  by  the  court  and 
paid  over  at  the  end  of  each  month  to  the  county  treasurer. 
Several  circuit  courts  have  held  this  statute  to  be  uncon- 
stitutional.'"^ The  cjuestion  has  not  as  yet  been  decided 
by  the  supreme  court.  With  this  exception  probate  judges 
are  entitled  to  deduct  as  salary  out  of  the  fees  received  by 
their  office  an  amount  equal  to  the  annual  compensation 
of  the  judge  of  the  circuit  court  having  jurisdiction  in  the 
same  county,  and  are  permitted  to  deduct  further  out  of 
such  fees  all  reasonable  and  necessary  expenses  for  clerk 
hire. 

§  126.  Terms  of  Court. — Probate  court  should  hold  four 
terms  annually,  commencing  on  the  second  ^Monda}"  of  Feb- 
ruary, May,  August  and  November,  and  may  hold  special 
and  adjourned  terms,  and  in  counties  where  such  courts 
are  held  in  more  than  one  place  for  the  transaction  of  pro- 
bate business,  the  courts  must  be  held  at  the  times  and 
places  designated  by  law  therefor.  Said  courts  may  alter 
the  time  lor  holding  their  stated  terms,  giving  notice  thereof 
in  such  manner  as  to  them  shall  seem  expedient.®^ 

88  Rev.  St.  1009,  §  40<;(1.  90  Laws  1011.  pp.  180,  1S7. 

80  Rev.  St  1009,  §  10t;95.  oi  Rev.  St.  1000,  §  40tJ0. 


320  PROBATE    COURTS,  JURISDICTION,  ETC.  §  126 

An  order  altering  the  time  of  holding  the  regular  terms 
should  be  entered  of  record  at  a  regular  term  of  said  court, 
and  may  be  as  follows: 

Now,  on  this day  of  the  regular term  of  this  court, 

commencing  on  the  second  Monday  of  ,  A.  D.,  19 — ,  it  is  or- 
dered by  the  court  that  the  time  for  holding  the  regular  stated  terms 
of  this  court  be  and  the  same  are  hereby  changed  from  the  second 
Mondays  of  February,  May,  August  and  November,  to  the  third 
Mondays  of  February  and  May,  and  to  the  first  Mondays  of  August 
and  November,  so  that  hereafter  the  regular  terms  of  this  court 
will  commence  on  the  third  Mondays  in  February  and  May,  and  on 
the  first  Mondays  of  August  and  November  in  each  year ;  and  it  is 
further  ordered  that  notice  of  the  change  of  time  for  holding  this 
court  be  given  by  the  publication  of  a  copy  of  this  order  for  four 

weeks  successively  in  the ,  a  newspaper  printed  and  published 

in  the  city  of in  the  county  of and  state  of  Missouri. 

In  the  absence  of  any  showing  on  the  subject  it  will  be 
assumed  that  a  special  term  of  the  probate  court  was  prop- 
erly and  lawfully  held."^  By  a  special  provision  the  terms 
of  probate  court  in  Jackson  county,  Missouri,  commence  on 
the  second  Monday  of  February,  May,  September  and  No- 
vember of  each  year,  instead  of  the  second  Alonday  in  Feb- 
ruary, May,  August  and  November.^^ 

§  127.  Powers  of  Probate  Court. — In  the  exercise  of  its 
jurisdiction  the  probate  court  is  governed  by  the  statutes 
in  relation  to  administration,  to  guardians  and  curators  of 
minors  and  persons  of  unsound  mind,  to  apprentices,  and 
such  laws  as  may  be  enacted  defining  and  limiting  the  prac- 
tice in  said  court.®*  Such  court  has  power  to  enforce  obedi- 
ence to  all  orders,  rules,  judgments,  and  decrees  thereof, 
and  may  issue  attachment  for  contempt  offered  such  court 
or  its  process  by  any  person,  and  may  fine  and  imprison  all 
such  offenders  in  the  same  manner  as  circuit  courts  may 
do  in  like  cases. "^ 

The  probate  judge,  in  vacation,  has  such  powers  as  are 
specially  conferred  upon  him  by  law,  A  probate  judge  may 
be  invested  with  and  execute  judicial  powers  other  than 
those  granted  by  the  constitution  to  the  probate  court.  But 
as  we  have  said,  neither  the  judge  nor  the  probate  court 
can  exercise  any  functions  or  powers  or  perform  any  act, 
unless  the  same  be  authorized  by  law.    He  cannot  grant  a 

»2  state  ex  rel.  Bell  v.  Nolan,  99  Mo.  569,  12  S.  W.  1047. 

93  Terras  of  probate  court  in  Jackson  county. 

94  Rev.  St.  1909,  §  4067. 

9  5  Rev.  St.  1909,  §  4068;  State  ex  rel.  Lionberger  v.  Tolle,  71  Mo. 
645. 


§  129  PROBATE   COURTS,  JURISDICTION,  ETC.  1-1 

new  trial, '•^  nor  take  the  opinion  of  a  jury  upon  any  special 
fact."^ 

§  128.  All  Writs,  Orders  and  Other  Process  of  the  pro- 
bate court  must  be  issued  and  directed  to  the  sheritt  of  the 
county  where  such  process  is  to  be  served,  and  it  may  be 
executed  by  the  sheriff  or  his  deputy,  and  if  the  sheriff  be 
interested  or  disqualified,  it  may  be  served  by  the  coroner, 
or  if  the  office  be  vacant,  by  a  person  specially  deputized 
for  the  purpose.'"* 

§  129.  Docket  to  be  Kept. — The  probate  court  or  clerk 
must  keep  a  docket,  in  which  must  be  entered,  at  least 
thirty  days  before  each  term,  the  names  of  all  executors 
and  administrators  and  of  all  guardians  and  curators  whose 
settlements  are  due  at  such  term,  and  designate  the  particu- 
lar day  on  which  each  settlement  is  required  to  be  made, 
and  cause  the  same  to  be  published  for  three  weeks  in  some 
newspaper  published  in  the  county,  if  there  be  one,  and  the 
court  must  divide  the  cost  of  printing  each  docket,  by  the 
whole  number  of  cases  docketed,  and  tax  against  each  es- 
tate the  amount  ascertained  by  such  division  as  its  costs  in 
the  case,  and  if  there  be  no  such  paper  published  in  the 
county,  the  clerk  must  post  up  a  copy  of  such  docket  in 
some  conspicuous  place  in  his  office,  thirty  days  before  said 
term.  And  on  the  day  so  appointed,  the  executor,  admin- 
istrator, guardian  or  curator,  must  appear  and  make  his 
settlement,  unless  for  good  cause  shown  the  court  shall 
continue  the  same  to  some  other  day  or  term.»^ 

The  law  as  to  administration  of  estates  of  deceased  per- 
sons, and  as  to  guardians  and  curators,  requires  the  court 
to  make  out  a  docket,  and  as  it  is^  substantially  alike  in  both 
cases,  but  one  docket  need  be  made  and  published.^****  It 
may  be  in  the  following  form : 

Probate  Court 

Docket  of  cases  in  which  settlements  are  due,  from  executors  and 

administrators,  and  guardians  and  curators,  at  the  ensuing  

term  of  the  probate  court  of  county,  to  be  held  at  the  court 

house  iu  said  county,  commencing  on  the  Monday  of  

A.  D.,  19 — .    (See  Guardian.) 

96  Morris  v.  Lane.  44  Mo.  App.  1. 

»7  Bradley  v.  Woerner,  46  Mo.  App.  371. 

98  Rev.  St.  1909.  §§  11212,  11217-11219. 

9  0  Rev.  St.  1909.  §  224. 

i-^o  Rev.  St.  1909.  §  447. 


122  PROBATE   COURTS,  JURISDICTION,  ETC.  §  130 

§  130.  When  Guilty  of  Misdemeanor — Penalty. — If  the 
judge  or  clerk  of  probate  shall  knowingly  and  willfully  do 
any  act,  prohibited  by  law,  or  omit  or  refuse  to  perform 
any  act,  service  or  duty  required  of  him  by  law,  he  shall 
be  deemed  guilty  of  a  misdemeanor  in  office,  and  on  con- 
viction, be  removed  from  office  and  be  subject  to  suit  for 
damages  by  any  person  who  may  be  injured  by  such  act.^°^ 
§  131.  Fees. — The  probate  court  is  required  by  law  to 
charge  specific  fees  for  the  services  it  renders.  The  stat- 
ute provides  for  the  following  fees : 

For  granting  letters  of  administration  or  testamentary,  record- 
ing the  same,  appointing  witnesses,  administering  oaths,  and 

everything  relating  thereto $1.00 

For  an  order  appointing  guardian  or  curator 15 

For  talving  and  filing  bond  of  executor,  administr.itor  or  cura- 
tor, and  recording  same 75 

For  taking,  filing  and  recording  any  bond  not  otherwise  pro- 
vided for 75 

For  apportioning  assets  among  creditors 50 

For  advertising   each    settlement   of,   etc.,   and    docketing   the 

same   It^ 

For  every  order  directing  specific  performance  of  any  contract 

for  the  conveyance  of  real  estate 1.50 

For  an  order  of  sale  of  I'eal  estate 75 

For  copy  of  every  such  order 40 

For  an  order  of  publication 40 

For  copy  of  such  order 35 

For  every  order  of  sale  of  personal  property 35 

For  every    order     relating    to     administrators,     executors    or 

guardians  not  other\^^se  provided  for 15 

For  copying  any  order,  or  record,  or  paper  not  herein  provided 

for,  per  hundred  words 10 

For  taking  and  filing  heirs'  refunding  bond 35 

For  every  verdict  or  .iudgment 25 

For  taking,    filing  and  recording  new  bond   of  administrator, 

executor,  guardian  or  curator 75 

For  recording  every  settlement  or  instrument  of  writing,  not 

othermse  provided  for,  per  hundred  words  and  figures 10 

For  issuing  a  citation  to  an  administrator,  executor,  guardian 

or  curator 35 

For  taking  proof  of  any  will  or  codicil 75 

For  every  certificate  and  seal 50 

For  issuing  every  siibpoena 25 

For  administering  every  oath 05 

For  making  abstract  of  demands,  for  every  demand 05 

For  certifying  with  seal,   the  amount,   date,   and  class  of  de- 
mand, when  allowed 10 

For  drawing,  taking  and  filing  each  indenture  of  apprentice- 
ship, when  the  court  binds  a  minor,  to  be  paid  by  the  master    1.50 

101  Rev.  St.  1909,  §  4064. 


§  131  PROBATE    COURTS,  JURISDICTION,   ETC.  123 

For  swoarini;  and  eiitcrinj:  a   jury ?  -^'-J 

For  entorini.'  a  trial  with  or  withuut  a  Jiuy 05 

For  a  commission  to  take  depositions 50 

For  an  execution  or  otlier  writ  not  otherwise  provided  for.  ...     1.00 

For  talvinj?  and  entering  a  recognizance •'55 

For  an    attachment 50 

For  eveiw  continuance  of  a  cause 10 

For  entering  an   appeal '^0 

For  taking  and  finding  appeal  bonds 30 

For  venire  for  jury  when  one  is  specially  ordered  and  is  ac- 
tually  issued ''.j 

For  each  order  distributing  assets  among  heirs 35 

For  entering  a  settlement,  ainiual  or  final 35 

For  filing  every  paper,  not  otherwise  provided  for 05 

For  e.xamining,  and   approving  or   re,1ecting.  every  settlement 

of  administrators,  executors  or  guardians 50 

For  hearing   and    determining   every    cau.se  submitted   to   him 

for  trial 50 

For  examining  and  approving  or  rejecting,  every  inventory, 
appraisement"  sale  bill  or  bond  of  any  executor,  administra- 
tor or  guardian 50 

For  solemnizing  a  marriage 2.00 

The  jud.s^e  or  clerk  is  not  authorized  to  afifix  a  certificate 
and  seal  to  any  document  showing  that  the  same  has  been 
recorded  and  make  a  charge  therefor,  unless  such  certificate 
is  expressly  required  by  law.^°- 

The  probate  judge  is  not  entitled  to  fees  for  entering  or- 
ders opening  and  adjourning  court.^"^  Parties  may  by 
agreement  of  record  make  expenses  taxable  as  costs,  which 
would  not  otherwise  be  so  taxable. ^°* 

102  Rev.  St.  1900,  §  10G95;  Gannnon  v.  Lafayette  County,  70  Mo. 
675. 

103  Gammon  v.  Lafayette  County,  76  Mo.  675;  City  of  St.  Louis  v. 
RIeintz,  107  Mo.  611,  IS  S.  W.  30:  Houts  v.  McCluney.  102  Mo.  13. 
14  S.  W.  766 ;  Hoover  v.  Missouri  Pac.  Ry.  Co.,  115  Mo.  77,  21  S.  W. 
1076. 

104  Schawacker  v.  McLaughlin,  139  Mo.  333,  40  S.  W.  938;  Wat- 
kins  V.  McDonald,  70  Mo.  App.  357;  State  ex  rel.  Ury  v.  Gans,  72 
Mo.  App.  638. 


124  EXECUTORS   AND   ADMINISTRATORS  §  132 


CHAPTER  XV 

OF  THE  APPOINTMENT  OF  EXECUTORS  AND  ADMINISTRA- 
TORS, THEIR  BOND,  REVOCATION  OF  LETTERS,  ETC. 

§  132.  Executor. 

133.  Executor  de  son  tort. 

134.  General  administrators. 

135.  Special  administrators  defined. 

136.  Executors  and  administrators,  same  duties. 

137.  Executors  cannot  act  without  letters. 

138.  What  court  may  grant  letters. 

139.  In  what  county  letters  must  be  granted. 

140.  To  whom  letters  may  not  be  granted. 

141.  To  whom  letters  may  be  granted. 

142.  Same — Letters  in  case  of  general  intestacy. 

143.  Same — To  husband  or  wife. 

144.  Same — When  wife  has  seitarate  estate. 

145.  Same — To  distributees  or  next  of  kin. 

146.  Citation  to  administer — Letters  to  another, 

147.  No  letters  to  be  granted,  when,  etc. 
.  148.  Proceedings  to  obtain  letters. 

149.  Same — By  executor  or  administrator. 

150.  Bond  of  executors  and  administrators. 

151.  Same — Liability  on,  etc. 

152.  Execution  of  bond — New  bond,  etc. 

153.  Who  shall  not  be  taken  as  sureties. 

154.  Approval  or  rejection  of  bond,  etc. 

155.  Bond  excused  by  will — Joint  bond,  etc. 

156.  Bond  to  be  recorded. 

157.  Validity  and  form  of  letters. 

158.  Same — To  be  approved  and  recorded. 

159.  Authority  conferred  by  letters. 

160.  Revocation  of  letters. 

161.  Same — Statutory  grounds  therefor. 

162.  Additional  bond  and  revocation  of  letters. 

163.  Effect  of  additional  bond. 

164.  Notice — When  administrator  has  left  the  state. 

165.  Resignation  of  executor  or  administrator. 

166.  Proceedings  on  revocation  of  letters,  resignation  or  death  of 

administrator,  etc. 

167.  Same. 

168.  Same — Former  administrator  required  to  settle,  etc. 

169.  Same — Notice  and  judgment. 

§  132.  Executors. — An  executor  is  a  person  to  whom 
the  execution  of  a  last  will  or  testament  is  by  the  testator's 
appointment  confided.^    The  appointment  must  be  made  by 

1  2  Blackstone's  Com.  503  ;  1  Williams,  Ex'rs,  197. 


§  133  EXECUTOES   AND   ADMINISTRATORS  125 

the  terms  of  the  will  itself;  so  if  tlicre  be  no  will,  there  can 
be  no  executor.  Although  a  testator  usually  nominates  an 
executor,  an  omission  to  do  so  does  not  invalidate  a  will ; 
therefore,  there  may  be  a  valid  will  which  nominates  no  ex- 
ecutor. On  the  other  hand,  a  will  may  be  made  for  the 
single  purpose  of  nominating  an  executor. 

The  law  requires  no  particular  form  of  appointment  of 
an  executor  in  a  will,  and  any  language  which  either  ex- 
pressly or  by  implication  imposes  the  duties  of  administra- 
tion upon  a  given  person,  or  clothes  him  with  the  authority 
to  carry  out  the  terms  of  the  will,  is  sufficient.  The  general 
rule  followed  by  the  courts  in  the  construction  of  other 
terms  of  a  will  applies  to  a  provision  appointing  an  executor 
— there  must  be  apparent  to  the  court  a  testamentary  inten- 
tion that  the  person  namicd  shall  take  charge  of  the  estate, 
perform  the  duties,  and  possess  the  powers  usual  to  the  of- 
fice of  an  executorship.^ 

§  133.  Executor  de  son  tort. — At  common  law  any  one 
who  took  upon  himself  the  office  of  executor  by  intrusion, 
or  intermeddled  Avith  the  property  of  the  deceased  without 
authority  made  himself  an  executor  de  son  tort,  or  "of  his 
own  wrong."  ^  An  executor  de  son  tort,  it  was  said,  was 
subject  to  all  the  liabilities,  but  was  entitled  to  none  of  the 
privileges  that  belong  to  an  executor — yet  he  was  protected 
in  doing  all  acts  not  done  for  his  own  personal  benefit  which 
a  rightful  executor  might  do.  The  intermeddling  necessary 
to  render  a  person  liable  as  an  executor  "of  his  own  wrong" 
was  such  as  manifested  an  attempt  to  exercise  control  over, 
or  make  dispositions  of  the  effects  of  the  deceased.'*  Even 
at  common  law  there  were  many  acts  which  mig;ht  be  per- 
formed by  a  stranger  without  incurring  liability  as  an  ex- 
ecutor de  son  tort,  such  as  gathering  up  and  taking  care  of 
the  goods  of  the  deceased ;  directing  the  funeral  in  a  man- 
ner suitable  to  the  condition  and  circumstances  of  the  de- 
ceased, and  defraying  the  expenses  thereof  out  of  his  own, 
or  the  decedent's  efifects ;  feeding  live  stock  belonging  to 
the  deceased;  making  indispensable  repairs,  or  providing 
necessities  for  the  family;  for  those  are  acts  of  kindness 
and  charity. 

2  In  re  Hill's  Estate.  102  Mo.  App.  G17,  77  S.  W.  110. 
SI  Williams.  Ex'rs,  225. 

4  Manner  v.  R.van,  19  Mo.  196 ;  Rougtell  v.  Strode,  12n  Mo.  App. 
348,  103  S.  W.  510. 


126  EXECUTORS    AND   ADMINISTRATORS  §  133 

An  executor  de  son  tort  with  the  common-law  liabilities 
connected  therewith  is  unknown  in  Missouri.  The  system 
provided  by  statute  for  the  settlement  of  estates  of  deceased 
persons  is  intended  to  be  exclusive  of  all  other  methods,  and 
the  laws  applicable  thereto  are  ample  and  sufficient  to  meet 
any  emergency  that  may  possibly  arise. ^  The  proper  per- 
son to  proceed  against  any  one  who  intermeddles  with  the 
property  or  assets  of  the  deceased  is  the  rightful  executor 
or  administrator.  A  creditor  cannot  collect  a  debt  due  to 
him  from  the  decedent  by  an  action  brought  by  him  against 
one  who  has  wrongfully  assumed  the  duties  of  an  executor. 
When  a  person  takes  out  letters  of  administration,  who  has 
without  right  exercised  the  duties  of  executor  or  adminis- 
trator before  his  appointment,  his  authority  is  extended  by 
relation  back  to  the  time  of  the  death  of  the  deceased,  and 
except  where  the  rights  of  innocent  parties  intervene,  his 
acts  are  to  be  viewed  in  the  same  light  as  if  he  had  been  the 
rightful  administrator." 

§  134.  General  Administrators. — If  a  person  make  no 
testamentary  disposition  of  his  property,  he  is  said  to  die 
intestate,  and  there  is,  in  such  case,  what  is  called  a  general 
intestacy.  If  there  be  a  will,  but  no  executor  is  appointed, 
or  the  appointment  should  wholly  or  partially  fail,  the  tes- 
tator is  said  to  die  quasi  intestatus.  At  common  law  there 
were  different  kinds  of  administrators,  viz. :  general,  special, 
limited  and  temporary.  These,  under  our  law,  may  be  di- 
vided into  two  kinds :  general  and  special.  A  general  ad- 
ministrator is  one  who  is  appointed  by  the  proper  court  to 
administer,  without  restriction  as  to  power  or  limitation  as 
to  time,  until  the  final  settlement  of  the  estate.  It  is  this 
kind  of  administration  that  is  usually  intended  where  the 
subject  is  mentioned  in  judicial  proceedings  or  legislative 
enactments.  An  administrator  cum  testamento  annexo, 
"with  the  will  annexed,"  may  be  termed  a  general  adminis- 
trator. The  appointment  occurs  when  there  is  no  executor 
named  in  the  will,  or  the  executor  named  in  it  renounces  the 
trust,  or  dies,  or  is  otherwise  disqualified.  Such  an  admin- 
istrator becomes  in  effect  an  executor,  and  he  is  charged 
with  the  duty  of  carrying  out  all  the  terms  of  the  will  ex- 

c  Rozelle  V.  Harmon,  103  Mo.  339,  15  S.  W.  432,  12  L.  R.  A.  187. 
6  Magner  v.  Ryan,  19  Mo.  196 ;   Stagg  v.  Green,  47  :Mo.  500. 


§  135  EXECUTORS   AND   ADMINISTBATOBS  127 

cept  those  which  commit  discretionary  powers  to  the  exec- 
utor.^ 

§  135.  Special  Administrators. — Special  administrators 
arc  of  dilTcrent  kinds,  and  are  classihed  with  reference  to 
the  circunii^tanccs  which  demand  their  appointment. 

1.  ^In  adiniitistrator  dc  bonis  noii  (of  goods  unachninis- 
tered)  is  one  who  is  appointed  to  complete  the  administration 
of  a  former  administrator  who  has  from  any  cause  failed  to 
fully  administer.  So  far  as'the  estate  is  committed  to  him,  an 
administrator  de  bonis  non  has  all  the  power  of  a  general  ad- 
ministrator.*"  He  stands  in  the  attitude  of  his  predecessor, 
and  it  is  his  duty  to  sue  for  and  recover  the  unadministered 
assets  when  necessary. 

2.  An  administrator  de  bonis  nan  cnni  tcstaincnfo  annc.vo 
is  one  who  is  appointed  to  complete  the  execution  of  a  will  or 
administration  of  an  estate  which  remains  unexecuted  or  unad- 
ministered by  reason  of  the  death,  removal,  or  incapacity  of 
the  executor  named  in  the  will.  His  powers  are  coextensive 
with  the  assets  unadministered.  Such  an  administrator  may  be 
appointed  to  protect  the  rights  of  heirs  and  distributees, 
though  there  be  no  debts, °  but  not  for  the  sole  purpose  of 
making  a  deed.^^ 

3.  An  administrator  durante  minore  estate  (acting  during 
minority)  is  one  appointed  where  the  executor  named  in  the 
will  is  an  infant,  to  take  charge  of  the  property  and  adminis- 
ter the  same  according  to  law,  under  the  direction  of  the  court, 
until  such  infant  executor  attains  his  majority  and  is  qualified 
to  act.^^ 

4.  An  administrator  pendente  lite  (pending  litigation)  is 
one  appointed  when  tbe  validity  of  a  will  is  contested,  to  take 
charge  of  the  estate  and  administer  it  according  to  law,  under 
the  direction  of  the  court,  until  the  contest  is  determined.^ - 

~  Borland  on  Wills,  §  SO;  Conipton  v.  ?iIcMahan,  19  Mo.  App.  494; 
Francisco  v.  Winsfield,  IGl  Mo.  542.  Gl  S.  W.  842. 

*^  Kev.  St.  1909.  §  ,54 ;  State,  to  Use  of  Blanton's  .\dni'r,  v.  Hunter. 
15  Mo.  491;  State  ex  rel.  Collins  v.  Diille,  45  Mo.  2G9 ;  Landruni 
V.  Bank.  6-3  Mo.  4S ;  State  ex  rel.  Pountain  v.  Gray,  100  Mo.  .".2G.  17 
S.  W.  500;  Enuiions  v.  Gordon.  125  Mo.  636,  2S  S.  W.  SG.3 ;  In  re 
Estate  of  Glover.  127  Mo.  153,  29  S.  W.  982. 

9  Scott  V.  Crews,  72  Mo.  261;  State  ex  rel.  Crane  v.  Ili'inricbs, 
82  JIo.  542. 

lOLons  V.  Joplin  Mining  &  Sinolting  Co..  G8  Mo.  422;  Grayson  v. 
Weddle.  63  Mo.  523  ;    Carey  v.  West,  139  Mo.  146,  40  S.  W.  661. 

11  Kev.  St.  1909.  §  21. 

12  Rogers  v.  Dively,  51  Mo.  193;   Lamb  v.  Helm,  56  Mo.  420;    State 


128  EXECUTORS   AND   ADMINISTRATORS  §  135 

If  the  case  contesting  the  will  be  appealed  to  the  supreme 
court,  the  letters  of  the  administrator  pendente  lite  can  not 
be  revoked  until  the  case  is  finally  determined/^  An  adminis- 
trator pendente  lite  has  no  greater  powers  than  a  regular  ad- 
ministrator, and  no  more  comprehensive  title, ^*  nor  has  he 
more  authority  to  take  possession  of  the  real  estate  and  col- 
lect rents  unless  by  order  of  the  probate  court.  Such  an  ad- 
ministrator does  not  take  the  character  of  a  receiver.^ ^ 

5.  An  administrator  durante  absentia  is  one  appointed  to 
take  charge  of  the  estate  and  administer  it  during  the  absence 
from  the  state  of  the  executor  named  in  the  will. 

The  last  three  of  these  special  administrators  are  of  a 
temporary  nature.  They  are  a  species  of  administration 
cum  testamento  annexo.  As  soon  as  the  rightful  execu- 
tor qualifies  and  takes  upon  himself  the  duties  and  responsi- 
bilities of  the  trust,  the  authority  of  the  special  administrator 
ceases,  and  he  must  account  for  and  pay  over  and  deliver  all 
the  money  and  property  of  the  estate  to  the  executor  or  gen- 
eral administrator.^''  Where  a  special  administrator  is  suc- 
ceeded by  the  executor  or  regular  administrator,  there  is  in 
effect  but  one  representation  of  the  original  testator. 

§  136.  Executor  and  Administrator  are  not  in  a  legal 
sense  synonymous  terms.  Barring  special  testamentary 
powers  given  toi  an  executor,  the  duties,  rights  and  lia- 
bility of  each  in  relation  to  the  estate  in  charge  from  the 
receipt  of  letters  to  the  final  settlement  are  so  essentially  the 
same  that  for  utility  and  convenience  we  may  treat  them  both 
under  the  same  general  headings,  pointing  out  the  difference 
as  we  proceed. 

§  137.  Executor  Cannot  Act  Without  Letters. — Former- 
ly an  executor  might  perform  many  acts  in  relation  to  the 
estate,  before  the  receipt  of  letters,  because,  he  derived  his 
interest  in,  and  power  over  the  property  of  the  deceased 
from  the  will,  and  the  title  to  it  vested  in  him  from  the  mo- 
ex  rel.  Cameron  v.  Shannon,  133  Mo.  139,  33  S.  W.  1137;  In  re  Es- 
tate of  Soulard,  141  :Mo.  042,  43  S.  W.  617. 

13  State  ex  rel.  Hamilton  v.  Guinotte,  156  Mo.  513,  57  S.  W.  281, 
50  I>.  R.  A.  787. 

14  Union  Trust  Co.  v.  Soderer,  171  Mo.  675,  72  S.  W.  499. 

15  Union  Trust  Co.  v.  Soderer,  171  Mo.  675,  72  S.  W.  499. 

16  Ro  Bards  v.  Lamb,  89  Mo.  303,  1  S.  W.  222;  Emmons  v.  Gordon, 
125  Mo.  636,  28  S.  W.  863;  Ully  v.  Meuke,  126  Mo.  190,  28  S,  W. 
643.  994. 


§   1:39  EXECUTORS   AND   ADMINISTRATORS  129 

mcnt  of  the  testator's  death. -^^  But  as  a  general  rule,  a  par- 
ty entitled  to  administer,  could  do  nothing  as  administrator 
before  letters  were  granted  lo  him,  because  he  derived  his 
authority,  not  like  an  executor  from  the  will,  but  entirely 
from  the  apj^ointment  of  the  court ;  and  an  administrator 
with  the  will  annexed,  had  no  greater  right,  in  this  respect, 
than  any  other  administrator.  But  now  the  general  rule 
is,  that  an  executor  must  prove  the  will  and  take  out  letters 
before  he  acquires  any  rights  or  incurs  any  liabilities  in  re- 
gard to  the  property  of  the  deceased,  or  before  he  can  bring 
suit  as  such  executor. ^^  The  doctrine  of  the  common  law 
which  regarded  the  ])ersonal  representative  as  the  absolute 
owner  of  the  personalty  belonging  to  the  deceased,  does  not 
prevail  here,  and  his  power  to  dispose  of  the  assets  is  limit- 
ed and  regulated  by  law.^"  But  the  principles  of  the  com- 
mon law  may  be  looked  to  in  explanation  of  our  statutes.^" 
The  estate  vests  in  the  executor  for  purj^oses  of  administra- 
tion, and  he  must  take  out  letters  before  he  is  fully  author- 
ized to  act."^ 

§  138.  What  Court  May  Grant  Letters. — The  probate 
court,  or  the  judge  or  clerk  thereof  in  vacation,  subject  to 
the  confirmation  or  rejection  of  the  court  has  power  to 
grant  letters  testamentary  and  of  administration.--  When 
letters  have  been  granted  by  the  clerk  in  vacation  he  must 
present  them  to  the  court  at  the  next  succeeding  term  there- 
of, and  enter  in  the  record  the  confirmation  or  rejection  of 
the  same.-^  The  appointment  made  in  vacation,  however, 
is  not  subject  to  collateral  attack,  and  the  letters  issued  are 
valid  until  rejected  by  the  court.-* 

§  139.  In  What  County  Letters  Must  be  Granted. — Let- 
ters testamentary  and  of  administration,  must  be  granted: 
I.  In  the  county  in  which  the  mansion  house  or  place  of 

17  1  Williams,  Ex'rs,  255. 

18  Sttiffg  V.  Green.  47  Mo.  500;  Coleman  v.  Farrar,  112  Mo.  54. 
20  S.  W.  441;  Venable  v.  Wabash  West.  Ry.  Co.,  112  Mo.  103.  20 
S.  W.  403,  18  L.  R.  A.  68;  Bamhrick  v.  Webster  Groves  Presby- 
terian Church  Ass'n.  5.3  Mo.  App.  2.-,:'. :    Rev.  St.  1909,  §  9. 

19  Stafig  V.  Linnenfelser,  59  Mo.  33G. 

2  0  Tittorin.iiton  v.  Hooker,  5S  Mo.  593. 

21  I^mb  V.  Helm.  56  ?»Io.  420. 

22  Rev.  St.  1909,  §  9;  Macey  v.  Stark,  116  Mo.  481,  21  S.  W.  10S8. 
2  3  Rev.  St.  1909,  §  11 :  Macey  v.  Stark,  116  Mo.  481.  21  S.  W.  1088. 
24  Macey  v.  Stark,  116  Mo.  481.  21  S.  W.  108S :    Brawford  v.  Wolfe, 

103  Mo.  391,  15  S.  W.  426;  Griesel  v.  Jones,  123  Mo.  App.  45.  99  S. 
W.  769. 

.    Kel.Mo.P.G.— 9 


130  EXECUTORS   AND    ADMINISTRATORS  §  140 

abode  of  the  deceased  is  situated.  2.  If  he  had  no  mansion 
house  or  place  of  abode  at  the  time  of  his  death,  and  pos- 
sessed lands,  letters  must  be  granted  in  the  county  in  which 
the  land,  or  the  greater  part  thereof,  lies.  3.  If  he  had  no 
mansion  house  or  place  of  abode  and  possessed  no  lands, 
letters  may  be  granted  in  the  county  in  which  he  died  or 
where  the  greater  part  of  his  estate  may  be.  4.  If  he  died 
out  of  the  state,  leaving  no  mansion  house,  place  of  abode, 
or  lands  in  this  state,  letters  may  be  granted  in  any  coun- 
ty.^^  If  letters  be  granted  in  the  wrong  county,  the  admin- 
istration proceedings  cannot  be  attacked  collaterally  on  that 
ground. -'^  All  orders,  settlements,  trials  and  other  proceed- 
ings in  relation  to  the  settlement  of  decedents'  estates  must 
be  had  or  made  in  the  county  in  which  the  letters  were 
granted.^'' 

§  140.  To  Whom  Letters  May  Not  be  Granted. — The 
general  rule  is  that  all  persons  are  capable  of  being  execu- 
tors, except  such  as  are  expressly  excluded  by  statute.  It 
is  provided  by  statute  that  no  judge,  justice  or  clerk  of  any 
court  having  probate  jurisdiction  in  his  own  county,  or  his 
deputy,  and  no  male  person  under  twenty-one  years  of  age, 
or  female  under  eighteen,  or  person  of  unsound  mind,  shall 
be  executor  or  administrator.  No  married  woman  shall  be 
executrix  or  administratrix;  nor  shall  the  executor  of  an  ex- 
ecutor, in  consequence  thereof,  be  executor  of  the  first  tes- 
tator.-^ Letters  cannot,  in  any  case,  be  granted  to  a  non- 
resident of  the  state ;  and  should  an  executor  or  administra- 
tor become  a  non-resident  the  proper  court  will,  on  due 
notice  to  him,  revoke  his  letters.-^  And  the  marriage  of  an 
executrix  or  administratrix  extinguishes  her  power  as  such 
and  her  letters  will  be  revoked. ^^ 

§  14L  To  Whom  Letters  May  be  Granted. — After  the 
probate  of  the  will  letters  testamentary  must  be  granted  to 
the  persons  therein  appointed  executors.     If  a  part  of  the 

2  5  Rev.  St.  1909.  §  12. 

2e  .Tohnson  v.  Boazley,  65  Mo.  2.50,  27  Am.  Rep.  276;  Riley's  Adurr 
V.  McCord's  Adni'r,  24  Mo.  205;  In  re  Estate  of  Davison,  100  Mo. 
App.  263,  73  S.  W.  373. 

27  Rev.  St.  1909,  §  13;  Realey  v.  Smitli,  158  Mo.  515,  59  S.  W. 
984,  81  Am.  St.  Rep.  317. 

2  8  Rev.  St.  1909.  §  14;    Becraft  v.  Lewis.  41  Mo.  App.  540. 

2  0  Rev.  St.  1909,  §  18;  Stevens  v.  Larwill,  110  Mo.  App.  140,  84 
S.  W.  113. 

30  Rev.  St.  1909,  §  49. 


§  142  EXECUTORS    AND    ADMINISTRATORS  131 

persons  thus  ai)i)ointo(l  refuse  to  act,  or  be  disqualificrl,  let- 
ters must  be  granted  to  the  others,  and  if  they  all  refuse  to 
act,  or  be  disqualified,  letters  of  administration  with  the 
will  annexed  must  be  granted  to  the  person  to  whom  ad- 
ministration would  have  been  granted  if  there  had  been  no 
will.''^  A  subscril)ing  witness  to  the  will  may  be  appointed 
executor,  if  he  has  no  devise,  legacy  or  gift  in  the  e-tate  or 
will.^- 

§  142.  Same — In  the  Case  of  a  General  Intestacy,  letters 
of  administration  are  to  be  granted  in  the  following  order: 
1st.  On  the  death  of  the  wife,  to  the  husband,  and  on  the 
death  of  the  husband  to  the  wife.  The  husband  or  wife  has 
the  superior  right  to  administer.  2d.  Next  to  the  husband 
or  wife,  those  entitled  to  the  distribution  of  the  estate,  or 
one  or  more  of  them,  as  the  court,  or  clerk  in  vacation,  shall 
believe  will  best  manage  and  preserve  the  estate."^  Those 
entitled  to  distribution,  and  consequently  to  administer,  are 
in  the  following  order:  1st.  The  children  of  the  deceased, 
or  their  descendants.  2d.  The  father,  mother,  brothers  and 
sisters,  and  their  descendants.  3d.  The  husband  or  wife. 
4th.  The  grandfather,  grandmother,  uncles  and  aunts  and 
their  descendants.  5th.  The  great-grandfathers,  great- 
grandmothers  and  tlieir  descendants,  and  so  on  in  other  cas- 
es without  end,  passing  to  the  nearest  lineal  ancestors  and 
their  children  and  their  descendants.^* 

The  order  of  precedence  prescribed  in  the  statute,  howev- 
er, is  not  so  rigid  as  to  preclude  the  probate  court  from 
passing  over  a  person  entitled  to  letters,  where  the  one  pass- 
ed over  is  unfit  to  administer  the  estate. ^'^  The  order  of  the 
probate  court  refusing  to  grant  letters  is  not  appealal:)le,  but 
the  remedy  is  by  mandamus  to  compel  the  court  to  issue 
letters  of  administration."''    Even  the  remedy  by  mandamus. 

31  Rev.  St.  1900.  §§  10.  570;  Miltenberfier  v.  Miltenberger.  78  Mo. 
27;    Grimm  v.  Tittnuui.  113  Mo.  56,  20  S.  W.  «;(;4. 

32  Rev.  St.  1000,  §  570;  Ilogan  v.  Iliiichey,  105  Mo.  527.  04  S.  W. 
522. 

33  Rev.  St.  1000,  §  15;  State  ex  rel.  (irover  v.  Fowler.  lOS  Mo. 
465,  IS  S.  W.  068;  Stevens  v.  Lurwill,  110  Mo.  App.  140,  84  S.  W. 
113. 

3  4  Rev.  St.  1000,  §  332. 

35  State  ex  rel.  Flick  v.  Reddish.  14<s  Mo.  App.  715,  120  S.  W.  53; 
Fitzgerald  v.  Smith.  112  Teiiii.  176,  7S  S.  W.  1050. 

30  State  ex  rel.  Grover  v.  Fowler.  lOS  Mo.  465.  18  S.  W.  068;  lu  re 
Estate  of  Flick,  212  Mo.  275.  110  S.  W.  1074;  State  ex  rel.  Flick  v. 
Reddish,  148  Mo.  App.  715,  120  S.  W.  53. 


132  EXECUTORS   AND   ADMINISTRATORS  §  143 

does  not  lie  where  the  court  acts  judicially  in  refusing-  to 
make  the  appointment.^"  The  judicial  character  of  the  ac- 
tion is  determined  by  whether  or  not  there  is  a  denial  of 
the  fitness  of  the  person  seeking  the  right  to  administer  un- 
der the  provisions  of  the  statute. ^^ 

§  143.  Same — The  Husband  or  Wife  stand  third  in  the 
order  of  distribution  in  Missouri,  but  they  have,  as  we  have 
shown,  the  first  right  to  administer.  It  is  not  supposed  that 
there  will  often  be  any  controversy  as  to  the  right  of  either 
the  husband  or  wife  to  letters,  yet  disputes  may  arise,  and 
the  application  of  either  be  opposed  by  other  parties  inter- 
ested in  the  estate,  on  the  ground  that  the  applicant  was 
not  the  husband  or  wife  of  the  deceased.  In  such  a  case  it 
devolves  upon  the  party  claiming  letters  to  prove  a  mar- 
riage. This  may  be  done  by  the  public  record  of  the  same, 
or  by  a  certified  copy  thereof,  or  by  the  certificate  of  the  of- 
ficiating officer  or  by  private  or  family  record,  or  by  the  tes- 
timony of  persons  who  were  present  at  the  marriage;  and 
in  the  absence  of  any  other  better  evidence,  it  may  be  shown 
by  evidence  of  open  profession  of  the  marital  relation,  gen- 
eral reputation,  and  reception  among  their  associates, 
friends  and  relatives  as  husband  and  wife.'®  If  the  parties 
have  been  divorced,  or  the  marriage  decreed  a  nullity,  nei- 
ther can  claim  the  right  to  administer  on  the  estate  of  the 
other,  as  husband  or  wife.  This  is  true  if  the  marriage  be 
void  ab  initio;  but  if  it  be  only  voidable  by  reason  of  some 
disability,  the  surviving  party  will  be  entitled  to  administer 
unless  sentence  of  nullity  was  declared  before  the  death  of 
the  decedent.*" 

By  the  marriage,  at  common  law,  the  husband  acquires 
an  absolute  title  to  all  the  personal  property  of  the  wife 
which  is  in  her  possession  at  the  time  of  the  marriage,  and 
he  becomes  liable  for  her  debts  contracted  dum  sola,  if  they 
be  enforced  against  him  during  coverture.  If  he  survives 
her  it  belongs  to  him  without  liability  on  his  part  to  account 
for  it  to  her  next  of  kin,  or  to  her  creditors  whose  claims 
were  not  enforced  before  her  death,  and  on  his  death  it  goes 
to  his  heirs  or  representatives.  He  also  acquired  by  the  mar- 
riage a  right  to  all  her  choses  in  action,  and  they  became 

37  state  ex  rel.  Flick  v.  PaMldish,  148  Mo.  App.  715,  129  S.  W.  53. 

38  State  ex  rel.  Flick  v.  Reddish,  148  Mo,  App.  715,  129  S.  W.  53. 
3  9  White  V.  Maxcy,  64  Mo.  552. 

40  1  Phillips,  16. 


§  144  EXECUTORS   AND   ADMINISTRATORS  133 

his  if  reduced  to  possession  or  disposed  of  by  him  before  her 
death. '^  If,  however,  he  died  before  reducing  them  to  pos- 
session or  disposing  of  them,  they  remained  the  wife's  if  she 
was  living;  if  not,  they  went  to  her  representatives.'*-  At 
the  common  law,  and  according  to  the  weight  of  American 
authorities,  the  surviving  husband  is  entitled  to  administer 
upon  all  the  wife's  choses  in  action  and  ijcrsonalty  in  pos- 
session not  disposed  of  by  her;  and  if  he  dies  before  admin- 
istering, or  after  partially  administering,  his  executor  or  ad- 
ministratcjr  is  entitled  to  be  administrator  de  bonis  non  of 
her  unadministered  goods  in  preference  to  her  next  of  kin, 
and  should  administration  be  granted  to  a  third  person,  or 
to  her  next  of  kin,  he  would  be  a  mere  trustee  for  the  repre- 
sentatives of  the  husband.^^ 

§  144.  When  Wife  Has  Separate  Estate.— But  such  is 
not  the  law  in  this,  or  in  any  other  state,  where  the  capacity 
of  the  wife  to  hold  and  enjoy  her  estate  to  her  separate  use 
is  recognized  both  at  law  and  in  equity.  Here,  if  by  ante- 
nuptial contract  or  marriage  settlement,  the  separate  estate 
of  the  wife  be  secured  to  her  separate  use,  or  if  the  husband 
should  permit  her  to  carry  on  business  on  her  sole  and  sep- 
arate account,  or  if  he  desert  her  and  she  carries  on  a  sepa- 
rate trade,  her  property  and  all  she  earns  will  be  deemed  to 
be  her  separate  estate,  and  her  right  to  it  will  be  enforced 
by  a  court  of  equity  against  the  claims  of  her  husband  or  of 
his  creditors,**  and  at  her  death,  it  will  pass  (as  will  also 
her  choses  in  action  not  reduced  to  possession  by  the  hus- 
band, and  any  other  separate  estate  of  which  she  dies  seized 
in  her  own  right),  through  the  ordinary  channels  of  the  law 
to  her  creditors  or  distributees.*^  The  statutes  of  Missouri 
have  materially  changed  the  common  law  w^ith  respect  to  the 
property  rights  of  the  wife,  so  that  all  real  estate  and  per- 

41  Leakey  v.  Maupin,  10  Mo.  368,  47  Am.  Dec.  120;  Sallee  v.  Ar- 
nold, 32  Mo.  532.  S2  Am.  Dec.  144;  Coughlin  v.  Kyan,  43  Mo.  99,  97 
Am.  Dec.  375;  Benne  v.  Schnocko,  100  Mo.  250.  13  S.  W.  82;  Rob- 
erts V.  Walker.  101  Mo.  597,  14  S.  W.  631 ;  Hart  v.  Leete,  104  Mo. 
315,  15  S.  W.  976. 

•4  2  Reeve's  Dom.  Rel.  1.  4 ;  2  Kent's  Com.  145;  Coughlin  v.  Ryan. 
43  Mo.  99,  97  Am.  Dec.  375. 

43  2  Kent's  Com.  136;  2  RedfieUl  on  Wills.  179;  Hendren  v.  Col- 
gin.  18  Ya.  231. 

44  Story's  Eq.  Juris.  §  1387;  Coughlin  v.  Ryan,  43  Mo.  09,  97  Am. 
Dec.  375 ;   Roper  on  Husband  and  Wife,  171-176. 

4  5  Coughlin  V.  Ryan,  43  Mo.  99.  97  Am.  Dec.  375. 


134  EXECUTORS   AND   ADMINISTRATORS  §  144 

sonal  property,  including  rights  in  action,  belonging  to  her 
at  her  marriage,  or  which  came  to  her  during  coverture  by- 
gift,  bequest  or  inheritance,  or  by  purchase  with  her  sepa- 
rate means,  or  due  as  wages  for  her  separate  labor,  or  grow 
out  of  any  violation  of  her  personal  rights,  with  the  income, 
increase  and  profits  thereof,  constitute  her  separate  proper- 
ty.*^ And  the  rents,  issues  and  profits  of  her  real  estate, 
and  the  proceeds  of  the  sale  of  her  real  estate,  etc.,  belong 
to  her  as  separate  estate.*^  And  the  husband  can  only  re- 
duce her  personal  effects  to  possession  by  procuring  her 
written  assent  thereto,  and  any  money  or  property  received 
by  him  after  this  law  went  into  effect,  will  be  held  in  trust 
for  her,  unless  she  assent  in  writing  that  he  may  receive  it 
or  dispose  of  it  for  his  own  use.*® 

The  act  of  1875,  R.  S.  1899,  §  4340,  enlarging  the  wife's 
property  rights,  is  not  retrospective  in  its  operation,  and 
does  not  apply  to  m^arriages  existing  at  the  date  of  its  pas- 
sage nor  to  rights  previously  accrued  thereunder.*"  If  prop- 
erty held  by  her  as  separate  property  in  another  state,  be 
brought  into  this  state,  it  will  continue  to  be  her  separate 
property. ^'^  The  husband  has  the  right  to  administer  on 
lier  estate,  but  he  does  not  take  her  property  in  such  case 
jure  marito,  nor  by  the  right  of  survivorship.  The  only  in- 
terest he  has  in  it  above  that  of  any  other  administrator  is 
as  a  distributee,  in  case  there  ])e  a  failure  of  children,  or  fa- 
ther or  mother  or  brother  or  sister  or  their  descendants.  If 
the  wife  has  made  a  will  disposing  of  her  estate  and  ap- 
pointing an  executor,  his  right  to  administer  is  barred,  un- 
less the  person  thus  appointed  refuse  or  fail  to  act,  in  which 
case  he  will  be  entitled  to  letters  with  the  will  annexed. 

§  145.  Letters  to  Distributees  or  Next  of  Kin. — No  rela- 
tive of  the  deceased  has  any  claim  to  letters,  unless  he  is 
interested  or  entitled  to  a  distributive  share  of  the  estate. 
But  there  may  be  many  persons  who  bear  the  same  relation 
to  the  decedent  and  are  equally  entitled  to  letters,  as  where 
the  decedent  leaves  a  numerous  family  of  children,  some 

46  Rev.  St.  1909,  §  8309.  4?  Rev.  St.  1909,  §  8308. 

48  Hart  V.  Leete,  104  Mo.  315,  15  S.  W.  976;  McGuire  v.  Allen,  108 
Mo.  403,  18  S.  W.  282;  Moeckel  v.  Heim,  40  Mo.  App.  340;  Pitkin 
v.  Mott,  56  Mo.  App.  401 ;  Winn  v.  Riley,  151  Mo.  61,  52  S.  W.  27,  74 
Am.  St.  Rep.  517 ;    Hurt  v.  Cook,  151  Mo.  416.  52  S.  W.  390. 

49  Leete  v.  State  Bank  of  St.  Louis,  115  Mo.  184,  21  S.  W.  788. 
Ro  Rice  v.  Shipley,  159  Mo.  399,  GO  S.  W.  740. 


§  146  EXECUTORS    AND    ADMINISTRATORS  135 

males  and  some  females,  some  the  offspring  of  one  mother, 
and  some  of  another,  etc.  In  such  a  case  it  devolves  on  the 
court  or  clerk  to  make  a  choice  of  one  or  more  of  them,  if 
the  parties  cannot  agree.  Those  who  will  best  manage  and 
preserve  the  estate  should  be  selected.  All  things  else  be- 
ing equal,  males  are  preferred  to  females;  the  senior  child 
is  preferred  to  the  younger;  the  learned  to  the  illiterate; 
those  familiar  with  business  to  those  unacquainted  with  it ; 
and  if  there  be  no  children  the  father  is  preferred  to  the 
brothers  or  sisters,  the  brothers  are  preferred  to  the  sisters, 
and  in  all  cases  relatives  of  the  whole  blood  are  preferred  to 
relatives  of  the  half  blood.  In  choosing  between  two  or 
more  wdio  are  equally  entitled  to  letters  the  court  or  clerk 
should  exercise  his  discretion  with  a  wise  and  provident  re- 
gard to  the  interests  of  those  who  have  claims  upon  the  es- 
tate, either  as  creditors  or  parties  in  distribution.  There  is 
no  impropriety  in  consulting  the  views  and  carrying  out  the 
wishes  of  those  interested  in  the  estate. ^^  Generally  a  sole 
administration  is  preferred  to  a  joint  one.  It  is  less  expen- 
sive to  the  parties,  more  convenient  for  the  claimants,  cred- 
itors and  distributees,  and  more  expeditious  in  its  move- 
ments.^- 

§  146.  Citation  to  Administer — Letters  to  Another. — If 
none  of  those  entitled  by  preference  apply  for  letters  of  ad- 
ministration within  thirty  days  after  the  death  of  the  de- 
cedent, the  court  or  judge  or  clerk  may  issue  citation  to  him 
or  them,  on  motion  of  any  person  interested,  to  appear  and 
qualify  for  administration,  giving  at  least  five  days'  time  for 
that  purpose,  and  if  the  person  or  persons  so  cited  fail  to 
administer  within  the  time  appointed,  letters  may  be  grant- 
ed to  any  person  whom  the  court  or  judge  or  clerk  in  vaca- 
tion may  deem  most  suitable,-"  or  if  the  persons  entitled  to 
preference  file  their  renunciation,  in  writing,  with  the  clerk, 
or  if  proof  be  made  that  no  such  person  resides  in  the  state, 
or  when  married  daughters  are  the  only  relatives,  as  they 
are  not  eligible  to  appointment,  their  right  to  letters  may 
be  considered  as  waived,^*  letters  may  be  granted  to  any 
person  deemed  suitable.  The  right  to  a  preference  in  ad- 
ministration is  purely  a  personal  right  and  cannot  be  dele- 

61  2  Phillips,  115;    1  Phillips,  123.  sa  i  Phillips.  123. 

5  3  Rev.  St.  1909.  §  16;    Skelly  v.  Veerkanip,  30  Mo.  App.  49. 
c*  Becraft  v.  I^ewis.  41  ^lo.  App.  54G ;    llollingsworth  v.  Jeffries, 
121  Mo.  App.  OGO,  97  S.  AV.  G32. 


136  EXECUTORS   AND   ADMINISTRATORS  §  146 

gated  to  another.  Our  statute  does  not  extend  the  scope  of 
the  right  to  include  the  privilege  of  nominating  an  adminis- 
trator.^" But  the  court  has  no  right  to  grant  letters  to  a 
stranger  within  thirty  days  after  the  death  of  the  decedent, 
nor  until  those  entitled  are  cited,  or  renounce  their  right  to 
take  out  letters ;  and  if  letters  are  thus  wrongfully  granted, 
they  will  be  revoked  on  the  application  of  those  entitled  to 
administer,^*'  but  their  validity  cannot  be  attacked  collater- 
ally.^'' If  a  person  not  entitled  to  administer  by  prior  right 
applies  for  letters  within  thirty  days  after  the  death  of  the 
intestate,  he  must  produce  satisfactory  evidence  that  the 
persons  having  the  preference  have  relinquished  their  right. 
This  matter  of  preference  applies  to  general  administrators, 
and  has  no  reference  to  those  appointed  for  a  temporary 
purpose.-"  In  no  case  will  letters  be  granted  to  a  nonresi- 
dent of  the  state,  and  when  an  executor  or  administrator  be- 
comes a  nonresident,  the  court  will  revoke  his  letters  upon 
proof  of  the  fact  and  due  notice  to  him.^^  Temporary  re- 
moval will  not  be  sufficient  to  revoke  his  letters.*^** 

Form  of  Citation  to  Administer 

State  of  Missouri,  ) 

County,    j 

The  State  of  Missouri  to  . 


Whereas,  I  am  informed  that  O.  R.,  late  of  the  county  of , 

has  departed  this  life  testate,  (or  intestate),  and  that  by  his  last  will 
and  testament  you  are  appointed  his  executor ;  [or  say,  and  that  you 
as  his  widow,  or  children  (name  the  relation  the  person  cited  bears 
to  deceased)  are  entitled  to  administer  on  his  estate,]  you  are  there- 
fore, at  the  request  of  E.  F.,  cited  to  appear  before  the  undersigned, 
judge  of  the  probate  court,  (or  clerk  of  the  probate  court),  at  my 

office  In  the  city  of  — ,  county  of ,  and  prove  said  will,  and 

take  out  letters  testamentary,  (or  of  administration)  on  the  estate 
of  said  O.  R.,  deceased,  within  (give  at  least  five  days'  time),  days 
after  the  receipt  of  this  notice;    or  in  default  thereof,  letters  will 

5  5  Rev.  St.  1909,  §  17;  State  ex  rel.  Burns  v.  Romjue,  136  Mo. 
App.  650,  118  S.  W.  1188;  In  re  Cresse's  Estate,  28  N.  J.  Eq.  236; 
In  re  Scott's  Estate,  76  Neb.  28,  106  N.  W.  10O3. 

66Mullanphy  v.  St.  Louis  County  Court,  6  :\ro.  564;  HoUings- 
worth  v.  Jeffries,  121  Mo.  App.  660,  97  S.  W.  632. 

5  7  Taylor  v.  Hosick,  13  Kan.  518. 

5  8  Lamb  v.  Helm,  .56  Mo.  420. 

5  9  Rev.  St.  1909,  §  18. 

eowalker's  Instate  v.  Walker,  1  Mo.  App.  404;  Tyler  v.  Priest,  31 
Mo.  App.  272. 


§  147  EXECUTORS    AND   ADMINISTRATORS  137 

be  granted  to  sucli  person  as  the  court  or  judge  or  clerk  shall  con- 
sider most  suitable. 

Witness  luy  liand  and  the  seal  of  the court  hereunto  affixed 

at  office  in ,  this  —  day  of ,  19—.  P-  ^I- 

Probate  Judge. 

Renunciation  of  Right  to  Administer 

State  of  Missouri,     ] 

County  of .  j 

To  the  Judge  (or  Clerk)  of  the Court  of County: 

I,  A.  B.,  widow  (or  state  what  relation)  of  O.  R..  late  of  said 
county,  deceased,  do  hereby  reliutiuish  and  renounce  all  right,  claim 
and  preference  which  I  may  have  to  administer  upon  the  estate  of 
said  O.  R.,  deceased.  '^-  ^•' 

Jan.  — ,  19—.  ^Yidow,  etc. 

Attest:    

Renunciation  of  Executor 

State  of  Missouri,     ] 

County  uf  .  \ 

To  the  Judge  (or  Clerk)  of  the Court  of County: 

I,  H.  W.,  of  the  county  of  ,  executor  (or  one  of  the  execu- 
tors) appointed  by  the  last  will  and  testament  of  O.  R.,  late  of  said 
county,  deceased,  do  hereby  decUne  to  accept  said  appointment,  and 
renounce  all  claim  to  letters  testamentary  of  said  will,  or  to  act  as 
executor  thereof.  ^-   **• 

Jan.  — ,  19—. 
Attest: 

§  147.  No  Letters  to  be  Granted.— The  probate  court 
may,  in  its  discretion,  refuse  to  grant  letters  when  the  estate 
is  no  greater  in  amount  than  the  law  allows  to  the  widow, 
widower  or  minor  children  under  sixteen  years  of  age.  And 
proof  may  be  allowed  on  behalf  of  such  widow,  widower  or 
children  as  to  the  value  and  nature  of  the  estate;  and  if  the 
court  be  satisfied  that  no  estate  would  be  left  after  allowing  to 
the  widow,  widower  or  minor  children  their  absolute  property, 
it  must  order  that  no  letters  be  issued  on  such  estate,  unless, 
on  the  application  of  creditors  or  other  parties  interested,  the 
existence  of  other  or  further  property  be  shown,  then  such 
order  must  be  revoked  and  letters  granted.  But  until  such 
order  be  revoked,  the  widow,  widower  or  minor  children  may 
sue  for,  collect  and  retain  all  the  property  belonging  to  the 
estate;  the  widow,  as  if  she  were  executrix:  the  minor  chil- 
dren as  provided  by  law  for  proceedings  in  courts  by  infants 
in  bringing  suits. ^^     There  must  be  an  order  of  court  direct- 

61  Rev.  St.  1909,  §  10. 


138  EXECUTORS    AND   ADMINISTRATORS  §  147 

ing  that  no  letters  be  granted,  in  order  that  the  widow,  wid- 
ower or  minor  children  be  authorized  to  recover  and  retain 
the  property,  and  sue  for  and  collect  the  debts  due  the  es- 
tate.*^- In  the  absence  of  such  order  the  only  person  who  is 
entitled  to  the  property  and  effects  of  an  intestate  is  the  ad- 
ministrator, but  if  the  funds  be  exempt  from  the  payment  of 
debts,  he  holds  them  in  trust  for  those  entitled  to  them.^^ 
The  statute  allowing  to  the  widow,  widower  or  minor  chil- 
dren their  absolute  property  does  not  deprive  an  unpaid 
vendor  of  personalty  o^  his  right  to  either  recover  the  prop- 
erty, or  enforce  payment  of  the  unpaid  part  of  the  purchase 
price.  He  is  entitled  to  have  an  administrator  appointed  to 
have  the  balance  of  the  purchase  price  allowed,  although  the 
estate  is  no  greater  in  amount  than  the  law  allows  to  the 
widow,  widower  or  the  minor  children  under  sixteen  years 
of  age.^* 

Form  of  Affidavit  of  JVidozn!  Claiming  Estate  as  Her  Absolute 

Property 
State  of  Missouri, 


County  of  '^^" 

R.  R.,  being  duly  sworn,  on  her  oatli  says  that  she  is  the  widow  of 

E.  F.,  deceased,  late  of  the  county  of ,  state  of  Missouri,  who 

died  on  or  about  the day  of ,  A.  D.  19—,  and  that  the 

estate  of  the  said  deceased  does  not  exceed  the  sum  of  Dol- 
lars in  value,  consisting  of: 

First:    A  family  Bible  and  other  books  of  the  value  of  $ . 

Second:  Plousehold,  kitchen  and  table  furniture,  iuc.uding  beds, 
bedsteads  and  bedding  of  the  value  of  .$ . 

Third:    Provisions  of  the  value  of  $ . 


Fourth:   Other  personal  property  consisting  of 


That  the  family  consists  of  herself  and 

Said  affiant  further  states  that  said  deceased  had  no  property  or 
effects  of  any  kind  whatsoever  at  the  time  of  his  death,  except  the 
property  above  mentioned,  so  far  as  she  has  been  able  to  ascertain, 
and  that  the  expenses  incuri-ed  by  the  last  illness  and  burial  of  de- 
ceased have  all  been  paid,  as  shown  by  the  accompanying  vouchers. 
Wherefore  she  prays  the  court  to  order  that  no  letters  of  admin- 

62  McMillan  v.  Wacker,  57  Mo.  App.  220;  Adey  v.  Adoy,  58  Mo. 
App.  408;  Jacobs  v.  Maloney,  64  Mo.  App.  270;  Grand  Lodge,  A.  O. 
U.  W.,  V.  Dister,  77  Mo.  App.  608;  Turner  v,  Campbell,  124  Mo. 
App.  1.3.3,  101  S.  W.  119. 

63  Grand  T^dge,  A.  O.  U.  W.,  v.  Dister,  77  Mo.  App.  608;  Mahouey 
v.  Nevins,  190  Mo.  .360,  88  S.  W.  731. 

6  4  Lazonby  v.  Smithey,  151  Mo.  App.  285,  1.31  S.  W.  708. 


^  147  EXECUTOKS    AND    ADMINISTRATORS  139 

istration  be  issued  on  said  estate,  in  piifsuance  of  the  provisions  of 
section  10  of  the  Revised  Statutes  of  I'JOa. 

Subscribed  and  sworn  to  before  uie  tliis  ^ 

day  of  ,  19—.  I . 

Tliis  form  can  be  rcailily  changed  to  ai)ply  where  the  wid- 
ower instead  of  widow  makes  the  appHcation. 

Order  Rcfiisi)ig  Administralion  for  Insufficiency  of  Property 

State  of  Missouri,     ) 
/I        *       *  ^ss. 

County  of  .  ] 

In  tlie  Probate  Court  for  tlie  County  of  ,  at  ,  Mis- 
souri,   A.  D.,  10 — . 

Estate  of  R.  R.,  deceased.    Order  Rofusin.i;  Letters  of  Administration. 

Now,  at  this  day  comes  E.  F.  and  sliows  to  the  court  that  she  is 

the  widow  of  R.  R.,  deceased,  late  of  the  county  of  ,  who 

died,  having  at  the  time  of  his  death  personal  property  in  this  state, 
not  greater  in  amount  than  is  allowed  by  law  as  the  absolute  prop- 
erty of  the  said  widow. 

It  is,  therefore  considered,  ordered  and  adjudged  by  tlie  court  that 
the  said  E.  F.  as  such  widow  be  and  hereby  is  authorized  and  empow- 
ered to  collect,  sue  for  and  retain  said  property  as  her  absolute  prop- 
erty, as  provided  by  law,  and  that  letters  of  administration  on  said 
estate  be  refused,  unless  upon  the  application  of  creditors  or  other 
persons  interested,  the  existence  of  other  or  further  property  be 
shown. 

A  true  copy  from  the  record. 

Witness  my  hand  and  the  seal  of  said  probate  court  hereto  affixed 

this  day  of  ,  10 — . 

,  Clerk. 

If  the  decedent  did  not  owe  any  debts,  and  nobody  owed 
him,  and  his  heirs  and  distributees  are  all  of  age  and  have 
made,  or  can  make,  distribution  of  the  property  among-  them- 
selves, there  is  no  necessity  for  administration,  and  none  should 
be  granted  against  the  wish  of  the  heirs. ^^ 

But  without  administration  creditors  and  legatees  cannot 
enforce  their  rights  and  obtain  what  belongs  to  them  against 
the  consent  of  those  in  charge  of  the  property  and  effects  of 
the  deceased. °^ 

6  5  JicCracken  v.  McCaslin,  50  Mo.  App.  85;  Todd  v.  James,  157 
Mo.  App.  41G,  1.3S  S.  W.  OliO  ;  Griesel  v.  Jones.  12:i  Mo.  App.  45,  99 
S.  W.  7(19. 

00  I'.oeger  v.  Langenberg,  42  Mo.  App.  7 ;  Richardson  v.  Colo,  IGO 
Mo.  372,  61  S.  W,  182,  83  Am.  St.  Rep.  479. 


140  EXECUTOES   AND    ADMINISTRATORS  §  147 

The  probate  court  is  the  only  tribunal  having  original  juris- 
diction to  determine  whether  or  not  administration  is  neces- 
sary, and  to  make  the  proper  orders  in  the  premises. °^ 

§  148.  Proceedings  to  Obtain  Letters. — The  mode  of 
proceeding  to  obtain  letters  testamentary  and  of  administra- 
tion varies  in  the  dififerent  cases.  It  is  not  necessary,  in  any 
case,  that  the  applicant  should  file  a  petition  in  writing,  asking 
letters  of  administration;  but  he  must,  at  the  time  of  making 
the  application,  as  an  indispensable  preliminary  to  any  action 
by  the  court,  make  an  affidavit,  stating  to  the  best  of  his 
knowledge  and  belief  the  names  and  places  of  residence  of  the 
heirs  of  the  deceased  ;  that  the  deceased  died  without  a  will ; 
that  he  will  make  a  perfect  inventory  of,  and  faithfully  ad- 
minister, all  the  estate  of  the  deceased,  and  pay  the  debts  as 
far  as  the  assets  will  extend  and  the  law  direct,  and  account 
for  and  pay  all  assets  which  shall  come  to  his  possession  or 
knowledge.®^  Failure  to  make  affidavit  as  prescribed  in  this 
section  does  not,  however,  render  letters  subject  to  collateral 
attack.«» 

Form  of  Application  for  Letters  Testamentary  or  of  Admin- 
istration 

In  the  Probate  Court  of County,  Missouri,  at , 

In  the  Matter  of  the  Estate  of ,  Deceased. 

Now  comes and  states  that  deceased  died  on  the day 

of ,  19 — ,  intestate  and  was  at  that  time  a  resident  of . 

That  the  probable  value   of  — ■ estate  is:    Personal,   .$ ; 

Real,  .$ .     That  the  names  and  residence  of  the  widow,  heirs, 


or  legatees  and  devisees  of  deceased  are  respectively  as  follows: 

Name                        Itelationship 

Residence 

That  affiant  will  make  a  perfect  inventory  of  and  faithfully  ad- 
minister all  of  the  estate  of  deceased  and  pay  the  debts  as  far  as 
the  assets  will  extend  and  the  law  direct,  and  account  for  and  pay 
all  assets  which  shall  come  to  his  possession  or  kno\\iedge. 

Residence,  — 

Business  Address, 

,  Atty.  for  Estate. 

Subscribed  and  sworn  to  before  me  this day  of .  19^. 

,  Clerk. 

67  McMillan  v.  Wacker,  57  Mo.  App.  220. 

6  8  Rev.  St.  1909.  §  22. 

eeMacey  v.  Stark,  116  Mo.  481,  21  S.  W.  1088. 


§  149  EXECUTORS    AND    ADMINISTRATORS  141 

A  similar  affidavit  with  such  variations  as  the  case  may 
require,  must  be  made  by  an  administrator  de  bonis  non — of 
goods  remaining  unachninistered,  and  by  an  administrator 
pendente  lite,  or  durante  minore  aetate,  or  durante  absentia, 
during  a  contest  about  a  will,  or  the  minority  or  absence  of 
an  executor."'' 

§  149.  Same — Every  Executor  or  Administrator  with 
the  Will  Annexed  must,  at  the  time  the  letters  are  granted 
to  him,  make  an  affidavit  that  he  will  make  a  perfect  inventory 
of  the  estate,  and  faithfully  execute  the  last  will  of  the  testa- 
tor, pay  the  debts  and  legacies  as  far  as  the  assets  will  extend 
and  the  law  direct,  render  just  accounts,  and  faithfully  per- 
form all  things  required  by  law  touching  such  executorship 
or  administration."^ 

Oath   of  Bxcciitor  or  Adviinistrator  with  the  Will  Annexed 

State  of  Missouri,      | 

County  of  .  j 

A.  B.,  executor  of  the  last  will  and  testament  of  O.  R.,  late  of  said 
county,  deceased,  (or  administrator  with  the  will  of  O.  K.,  late  of 
said  county,  deceased,  annexed)  being  duly  sworn  upon  Ms  oath 
says,  that  he  will  make  a  perfect  inventory  of  the  estiite,  and  faith- 
fully execute  the  last  will  of  the  said  O.  R.,  deceased,  pay  the  debts 
and  legacies  as  far  as  the  assets  will  extend  and  the  law  direct,  ren- 
der just  accounts,  and  faithfully  perform  all  things  required  by  law 
touching  such  executorship,  (or  administration).     A B . 

Subscribed,  etc.,  (add  jurat.) 

Upon  the  proper  affidavit  being  filed,  the  court  or  clerk 
should  make  an  entry  in  the  record  of  proceedings,  appointing 
the  person  (entitled)  executor,  or  administrator,  or  adminis- 
trator with  the  will  annexed,  as  the  case  requires. 

Form  of  Entry 

^    T^    J     .J      \  <^rant  of  letters  of  administration. 
O.  R.  dec  d.     | 

Now  comes  A.  R.  and  prays  the  court  for  letters  of  administra- 
tion on  the  estate  of  O.  R..  decea.sed,  and  having  filed  her  aiiidavit 
as  required  by  law,  showing  that  said  O.  R.    departed  this  life  at 

on  the  day  of .  19 — ,  intestate,  leaving  .said  A. 

R.,  his  widow,  and  the  following  children  and  heirs  at  law,  residing 
as  follows,  to-\vit.:  (here  in.'^ert  their  names  and  places  of  re.si- 
dence) ;  and  stating  that  she  will  make  a  perfect  inventory  and  faith- 
fully administer  the  estate,  pay  the  debts  as  far  as  the  assets  will 

70  Rev.  St.  1909,  §  23. 

71  Rev.  St.  1009,  §  24;  Stagg  v.  Green,  47  Mo.  500;  Coleman  v. 
Farrar,  112  Mo.  54,  20  S.  W.  441. 


142  EXECUTORS   AND   ADMINISTRATORS  §  150 

extend  and  law  direct,  and  account  for  and  ray  over  all  assets  which 
shall  come  to  her  knowledge  or  possession.  And  it  appearing  to  the 
court  that  said  O.  R.  died  possessed  of  property  of  the  probable  value 

of ■ —  dollars,  and  that  said  A.  R.  is  the  widow  of  said  intestate 

and  is  competent  and  by  law  entitled  to  administer  upon  said  estate. 
It  is  ordered  that  letters  of  administration  of  the  goods,  chattels, 
credits,  and  effects  of  said  deceased  be  issued  to  the  said  A.  R.  and 
that  she  enter  into  a  bond  to  the  State  of  Missouri  in  the  sum  of 

dollars,  with  two  or  more  sufficient  securities,   residents  of 

this  county,  conditioned  according  to  law.  


§  150.  Bond  of  Executors  and  Administrators. — Execu- 
tors and  administrators  must  in  all  cases  give  bond  to  the 
State  of  Missouri,  with  two  or  more  sufficient  securities,  resi- 
dents in  the  county,  in  such  sum  as  the  court  or  judge  or  clerk 
shall  deem  sufficient,  not  less  than  double  the  amount  of  the 
estate. ■^^ 

Bond  of  Adnimistratrix 

Know  all  men  by  these  presents,  that  we,  A.  R.,  as  principal,  and 
S.  C.  and  P.  F.,  as  securities,  are  held  and  firmly  bound  unto  the 

State  of  Missouri  in  the  sum  of  dollars,  for  the  payment  of 

which  we  bind  ourselves,  our  heirs,  executors  and  administrators. 
The  condition  of  the  above  bond  is,  that  if  A.  R.,  administratrix  of 
the  estate  of  O.  R.,  deceased,  shall  faithfully  administer  said  estate, 
account  for,  pay  and  deliver  all  money  and  property  of  said  estate, 
and  perform  all  other  things  touching  said  administration  i-equired 
by  law  or  the  order  or  decree  of  any  court  having  jurisdiction,  then 
the  above  bond  to  be  void ;    otherwise  to  remain  in  full  force. 

A.  R.  

S.  C.  

P.  F.  ISeal] 

Taken  and  approved,  and  recorded,  this day  of ,  19 — , 

and  I  certify  that  this  bond  was  signed  and  executed  in  my  presence. 

P.  M., 
Probate  Judge. 

A  similar  bond,  with  such  variations  as  the  case  may  re- 
quire, must  be  given  by  all  executors  (unless  the  will  excuse 
a  bond),  administrators  with   the   will   annexed,   or  de  bonis 

non,  or  pendente  lite,  or  durante  minoria,  or  durante  absen- 
tia.^3 

Bond  of  Executor  or  Administrator  zvith  Will  Annexed 

[Proceed  as  in  administrator's  bond  to  the  condition,  then  say,] 
The  condition  of  the  above  bond  is,  that  if  E.  F.,  executor  of  the 
last  will  and  testament  of  O.  R.,  deceased,   (or  administrator  with 

72  Rev.  St.  1909,  §§  25,  27;    Woods  v.  State,  to  Use  of  Rainey,  10 
Mo.  C98 ;   State,  to  Use  of  Renfro's  Adm'rs,  v.  Price,  15  Mo.  375. 
7  3  Rev.  St.  1909,  §  27. 


§  151  EXECUTORS   AND   ADMINISTRATORS  143 

the  will  annoxod,  of  O.  R.,  deceased,)  shall  make  a  perfect  inventory 
of  the  estate,  and  faithfully  execute  the  last  will  of  the  testator,  pay 
the  debts  and  lejiacies  as  far  as  the  assets  will  extend  and  the  law 
direct,  render  just  accounts,  pay  and  deliver  all  uKjney  and  prui)erty 
of  said  estate,  and  perform  all  other  things  touchinj^  the  exefutiun  of 
the  said  last  will  and  ti'stanicnt  nM|uiri'd  by  law,  or  the  order  or  de- 
cree of  any  court  havinii  jurisdiction,  then  the  above  bond  to  be  void; 
otherwise  to  remain  in  full  force. 

E.  F.  • 

S.   < '.  

P.  F.  [Scan 

Taken,  approved,  and  recorded,  this  day  of  ,   10 — , 

and  I  certify  that  this  bond  was  signed  and  executed  in  my  presence. 

J.  K., 
(Style  of  otlice.) 

§  151.  Same — Liability  on,  etc. — The  circuit  court  has 
original  juris(Uction  of  civil  actions  for  breach  of  executor's 
and  administrator's  bonds."*  Liability  can,  however,  be  im- 
posed upon  the  defaulting  executor,  or  administrator,  and  his 
sureties  through  a  proceeding  in  the  probate  court  brought  by 
the  succeeding  administrator.""' 

The  word  "bond"  imports  a  sealed  instrument,"''  but  our 
statute  dispenses  with  the  seal  and  if  it  is  signed,  and  de- 
livered, it  is  sufficient.'^'  It  binds  both  principal,  and  sureties, 
although  not  approved  by  the  court.'**  Nor  does  error  in  giv- 
ing the  name  of  the  deceased  affect  its  validity."'*  A  bond  that 
contains  blanks  at  the  time  it  is  signed  is  not  vitiated  by  filling 
in  the  blanks  afterwards  in  accordance  with  the  understanding 
of  the  obligors.^** 

All  the  provisions  of  the  statute  relating  to  the  obligation 
to  the  statutory  bond  are  to  be  read  into  the  bond  as  a  part 
thereof.**^ 

74  Oldham  v.  Trimble,  l.o  Mo.  22."):  State  v.  Slevin.  O-T  Mo.  2.J.I.  6 
S.  W.  68,  3  Am.  St.  Rep.  520;  State  ex  rel.  .Johnson  v.  Withi-ow.  108 
Mo.  1,  IS  S.  W.  41 ;  State  ex  rel.  Fagan  v.  Grigsby,  92  Mo.  419,  5 
S.  W.  39. 

75  Rev.  St.  1909.  §  50:  Seymour  v.  Seymour,  C7  Mo.  .'503;  State  ex 
rel.  Langston  v.  Zorn,  138  Mo.  App.  713,  119  S.  W.  517. 

7<;  Donnell  Mfg.  Co.  v.  Repass,  75  Mo.  App.  420. 
7  7  Fogg  V.   School  District  of  Sedalia,  75  Mo.  App.  100;    Donnell 
Mfg.  Co.  V.  Repass,  75  Mo.  App.  420. 

78  Henry  v.  State,  to  Tse  of  Russell.  9  Mo.  778;  Rrown  v.  Weath- 
erby,  71  Mo.  152. 

79  State,  to  Use  of  Renfro's  Adm'rs.  v.  I'riee.  15  ^lo.  375. 

80  Greene  County,  to  Use  of  Sims.  v.  Wilhite,  29  Mo.  App.  459. 

81  State  ex  rel.  Grimm  v.  Manhattan  Rubber  Mfg.  Co.,  149  Mo.  ISI, 
50  S.  W.  321. 


144  EXECUTORS   AND   ADMINISTRATORS  §  151 

The  surety  cannot  avoid  liability  by  showing  that  he  signed 
the  bond  conditionally.** ^  ^g  money  which  arises  from  the  sale 
or  rental  of  real  estate  by  an  administrator,  or  executor,  con- 
stitutes assets  in  his  hands,  he  and  his  bondsmen  must  account 
therefor.^^  But  the  sureties  on  the  bond  of  an  executor,  who 
is  given  power  by  the  will  to  sell  real  estate  of  the  testator, 
are  not  liable  for  money  received  by  him  for  the  sale  of  land 
in  another  state,  unless  it  be  shown  that  the  will  was  probated 
in  that  state,  or  that  the  sale  was  made  in  accordance  with  the 
laws  of  that  state.^* 

§  152.  Execution  of  Bond — New  Bond,  etc. — It  is  of  the 
utmost  importance  to  creditors,  heirs  and  those  interested 
in  the  estate,  that  a  good  and  ample  bond  should  be  taken 
before  the  estate  is  committed  to  the  custody  of  the  execu- 
tor or  administrator;  and,  it  is  made  the  especial  duty  of 
the  court  or  clerk  to  be  careful  to  take  as  securities,  men 
who  are  solvent  and  sufficient,  and  who  are  not  bound  in 
too  many  other  bonds.  The  court  may  hear  testimony  or 
examine,  on  oath,  concerning  the  sufficiency  of  the  secur- 
ity offered,  the  applicant  or  persons  offered  as  his  sure- 
ties. The  bond  must  be  signed  and  executed  in  presence 
of  the  court  or  judge  or  clerk,  who  must  certify  to  the  same, 
and  the  judge  must  examine  all  such  bonds  annually,  and 
if  he  has  good  reason  to  believe  that  any  security  has  be- 
come a  non-resident,  has  died  or  become  insolvent,  he  must 
order  that  the  executor  or  administrator  give  another  bond 
to  the  satisfaction  of  the  court  or  judge,  five  days  notice  of 
such  intended  order  must  be  given  to  such  executor  or  ad- 
ministrator, and  upon  failure  to  give  such  bond  within  ten 
days  after  such  order  is  made,  the  court  or  judge  may  make 
an  order  revoking  his  letters,  and  from  that  time  his  au- 
thority will  cease.®^  The  forgery  of  the  name  of  one  of  the 
sureties  on  the  bond,  and  the  false  representation  that  it 
is  genuine,  will  not  release  one  who  signs  it  on  the  faith  of 
such  representation.^^ 

82  Gay  V.  Murphy,  134  J^Io.  98,  34  S.  W.  1091,  56  Am.  St.  Rep.  496; 
North  Atchison  Bank  v.  Gay.  114  Mo.  203,  21  S.  W.  479;  State  v. 
McGonisle,  101  Mo.  353,  13  S.  W.  758,  8  L.  R.  A.  735,  20  Am.  St. 
Rep.  (iOO ;    Wolff  v.  Schaeffer,  74  Mo.  154. 

83  Leu-is  V.  Carson,  93  Mo.  587,  3  S.  W.  483;  Stong  v.  Wilkson,  14 
Mo.  116. 

8  4  Emmons  v.  Gordon,  140  Mo.  490,  41  S.  W.  998,  62  Am.  St.  Rep. 
734. 

8  5  Rev.  St.  1909,  §  29. 

86  state  ex  rel.  Hewitt  v.  Hewitt,  72  Mo.  603. 


§  155  EXECUTORS   AND   ADMINISTKAT0R8  145 

§  153.  Who  Shall  Not  Be  Taken  as  Surety.— It  is  pro- 
vided ])}'  statute  that  no  judge  ui  proliate,  and  no  sheriff, 
marshal,  clerk  of  a  court,  or  deputy  of  either,  and  no  at- 
lorney  at  law,  shall  be  taken  as  security  in  any  bond  re- 
quired of  any  executor  or  administrator.**"  This  provision 
is  merely  directory ;  for,  should  any  person  thus  excluded 
sign  the  bond,  he  would  be  bound  in  like  manner  and  to 
the  same  extent  as  other  bondsmen.**'* 

§  154.  Approved — All  Bonds  Taken  in  Vacation  must 
be  approved  or  rejected  by  the  court,  and  the  approval  or 
the  rejection  must  be  entered  of  record,  and  be  endorsed 
upon  the  bond.  If  a  bond  be  rejected  a  new  and  sufficient 
one  must  be  given,  within  such  time  as  the  court  may  pre- 
scribe, and  in  default  thereof  the  letters  issued  will  be 
deemed  to  be  revoked.  An  administrator's  or  executor's 
bond  is  valid  although  not  approved,**"  and  a  rejected  bond 
is  also  valid  until  a  new  one  is  given.""  The  execution  of 
the  bond  and  the  grant  of  letters  constitute  one  transac- 
tion, and  in  case  of  ambiguity  or  uncertaintx'  in  cither  the 
bond  or  letters,  reference  may  be  had  to  the  other  to  ex- 
plain such  ambiguity  or  imcertainty.'-*^  A  bond  containing 
more  conditions  than  are  required  by  the  statute  is  still  a 
statutory  bond.®^  Damages  resulting  from  each  breach 
of  a  guardian's  bond,  constitute  a  distinct  cause  of  action,''* 
but  no  more  than  the  amount  of  the  penalty  can  be  re- 
covered.°* 

§  155.  No  Executor  Has  Authority  to  Act  or  intermed- 
dle with  the  estate  unless  he  gives  bond;  and  when  there 
are  two  or  more  persons  appointed  co-executors  in  any  will, 
none  shall  act  except  those  who  give  bond,  and  if  more  than 
one  wishes  to  qualify,  they  must  give  a  joint  bond.'-^^     But 

8  7  Rev.  St.  1909,  §  28. 

88  Micks  V.  Chouteau,  12  Mo.  341;  State  ex  rel.  Howell  County  v. 
Findley,  101  Mo.  368,  14  S.  W.  111. 

8  9  James  v.  Dixon,  21  Mo.  538;  State,  to  Use  of  Burrough,  v. 
Farmer,  54  Mo.  439;  State  ex  rel.  Frost  v.  Creusbauer.  68  Mo.  254; 
Brown  v.  Weatherby.  71  Mo.  152. 

»o  Kev.  St.  1909,  §  33. 

91  Smith's  Ex'r  v.  Benton.  15  Mo.  375. 

92  Woods  V.  State,  to  Use  of  Rainey,  10  Mo.  698;  State  ex  rel. 
Fisher  v.  Rodecker,  145  Mo.  450,  46  S.  W.  10S3. 

93  state  ex  rel.  Patterson  v.  Tittmann,  134  Mo.  162.  35  S.  W.  579. 

94  State  ex  rel.  Moore  v.  Sandusky,  46  Mo.  377 ;  Showles  v.  Free- 
man, SI  Mo.  540 :  Turner  v.  Lord,  92  Mo.  113,  4  S.  W.  420. 

95  Rev.  St.  1909,  §§  19.  20;    Bambrick  v.  Webster  Groves  Presby- 

KFT,.Mo.r.(;.— 10 


146  EXECUTORS   AND  ADMINISTRATORS  §  155 

if  an  executor  be  appointed  by  will  and  the  testator  requests 
that  he  shall  not  be  required  to  s'ive  bond,  the  probate  court 
may  or  ma}-  not  recjuire  a  bond  at  the  instance  of  creditor 
or  devisee. 

If  there  be  minor  heirs,  or  legatees,  the  court  may  re- 
quire the  executor  to  give  bond  of  its  own  motion.  If  such 
a  requirement  be  made,  and  the  executor  fail  to  give  bond, 
within  ten  days  after  notification  so  to  do,  the  court  shall 
revoke  his  letters,  and  his  authority  from  that  time  shall 
cease. ''*^'  Where  two  administrators  sign  a  joint  bond,  with 
other  parties  as  sureties,  each  administrator  will  be  held 
as  surety  for  the  other. "^ 

§  156.  Bond  to  be  Recorded. — All  executors'  and  admin- 
istrators' bonds  must  be  recorded  in  a  well  bound  book  kept 
for  that  purpose,  and  the  originals  must  be  preserved  in  the 
regular  files,  and  such  as  are  taken  in  vacation  must  be  pre- 
sented to  the  court  at  the  next  term,  and  the  court  must 
approve  or  reject  such  bonds,  and  the  clerk  must  enter  such 
approval  or  rejection  of  record,  and  endorse  the  bond  ac- 
cordingly. If  the  bond  be  rejected,  the  court  must  order 
another  to  be  given  with  sufficient  surety  within  such  time 
as  the  court  shall  direct,  and  if  the  executor  or  adminis- 
trator fails  to  give  such  bond,  his  letters  are  deemed  re- 
voked. Any  rejected  bond  will  be  valid  until  a  new  one  is 
given."** 

§  157.  Of  the  Validity  and  Form  of  Letters. — Letters  of 
administration  and  testamentary  are  generally  issued  in 
writing,  signed  by  the  clerk  or  judge  of  probate,  and  at- 
tested by  the  seal  of  the  court,  and  when  granted  in  due 
form  they  are  evidence  of  the  appointment  and  authority 
of  the  person  to  whom  they  are  granted  to  administer, 
though  not  the  only  evidence  of  such  authority ;  for  the  or- 
der of  the  court  entered  of  record  is  a  sufificient  appoint- 
ment without  any  formal  letters,  if  the  party  give  the  bond 
and  take  the  oath  required,'*'''  and  the  record  of  the  appoint- 


terian  Church  Ass'n,  5.'}  Mo.  App.  225 ;  Coleman  v.  Farrar,  112  Mo. 
76,  20  S.  W.  441  ;    Stasf,'  v.  Green,  '47  Mo.  500. 

»G  Rev.  St.  1909,  §  20. 

9  7  Moore  v.  State  ex  rel.  Atkinson,  49  Ind.  558. 

98  Kev.  St.  1909,  §§  30,  81,  32,  33 ;  Brown  v.  Weatherby,  71  Mo. 
152 ;  State,  to  T.se  of  Burrough,  v.  Farmer,  54  Mo.  439 ;  James  v. 
Dixon,  21  Mo.  53S. 

9  9  State,  to  Use  of  Moore,  v.  Trice,  21  Mo.  434. 


§  157  EXECUTORS   AND   ADMINISTRATORS  147 

ment  by  the  court  is  admissible  to  prove  that  the  person 
mentioned  is  an  authorized  administrator.^""  And  letters 
granted  by  the  court,  though  not  signed  by  the  clerk,  are 
valid  until  set  aside.'"'  The  appointment  of  an  adminis- 
trator is  a  judicial  act,  and  when  the  court  granting  the  let- 
ters has  jurisdiction,  individuals  and  courts  of  justice  are 
bound  to  respect  the  authority  of  the  letters,  and  to  pre- 
sume omnia  rite  acta.'"-  Therefore  illegality  in  the  grant 
of  letters  cannot  be  taken  advantage  of  in  a  collateral  pro- 
ceeding.'"^ And  though  an  infant  cannot  be  legally  ap- 
pointed an  administrator,  yet  if  such  an  appointment  be 
made,  until  a  revocation  of  his  letters  the  acts  of  such  in- 
fant administrator  are  valid.'"* 

Grant  of  letters  is  prima  facie  evidence  of  the  death  of 
the  person  upon  whose  estate  they  are  granted  in  an  ac- 
tion upon  a  life  insurance  policy.'"'"'  And  the  recital  of  the 
fact  in  an  administrator's  deed  is  evidence  of  his  appoint- 
ment.'"" Letters  should  not  be  granted  to  a  stranger  until 
notice  and  an  opportunity  has  been  given,  as  required  by 
the  statute,  to  those  entitled  to  administer,  to  take  out  let- 
ters,'"^ and  if  letters  are  thus  wrongfully  granted,  they  will 
be  revoked  on  application  of  those  entitled  to  administer, 
and  new  letters  granted.'"** 

Letters  may  be  granted  on  the  estate  of  a  minor  where 
there  are  debts  for  which  he  was  liable  or  where  he  leaves 
a  will.'"^  The  estate  of  a  married  minor  is  not  to  be  dis- 
posed of  by  guardian,  but  by  an  administrator,  and  the 

100  i^iue  V.  Clark.  1  Mo.  658. 

101  Jeffrie  v.  llobidoaux,  3  Mo.  3o. 

102  Taylor  v.  Ilosick,  13  Kan.  51!S ;  Rowden  v.  Brown.  91  Mo.  420. 
4  S.  W.  129;  Edwards  v.  Smith,  63  Mo.  119:  lUihardson  v.  Buscb. 
198  Mo.  174,  95  S.  W.  894.  115  Am.  St.  Rep.  472. 

103  Riley's  Adm'r  v.  McCord'.s  Adm'r,  24  Mo.  265;  Howell  v.  Jumi). 
140  Mo.  441,  41  vS.  W.  976;  Brawford  v.  AVolfe,  103  Mo.  391,  15  S. 
W.  426;  Connor  v.  Paul,  138  Mo.  App.  13,  119  S.  W.  1006;  Griesel 
V.  Jones,  123  Mo.  App.  45.  99  S.  W.  769. 

104  Riser  v.  Snoddy,  7  Ind.  442.  65  Am.  Dec.  740. 

100  Lancaster  v.  \Yashinj,'ton  Life  Ins.  Co.,  62  Mo.  121. 

106  jolmsou  V.  Beazley.  65  Mo.  250,  27  Am.  Rep.  276;  Rowden  v. 
Brown,  91  Mo.  429.  4  S.  W.  129. 

10  7  Rev.  St.  1909.  §  16. 

los  Mnllanpliy  v.  St.  Ixniis  County  Court,  6  Mo.  564;  McCabe  v. 
Lewis,  76  Mo.  297 :  State  ex  rel.  Grover  v.  Fowler,  108  Mo.  465.  18 
S.  W.'968;    In  re  Estate  of  Estes,  65  Mo.  App.  38. 

109  Rev.  St.  1909,  §  454;   George  v.  Dawson's  Guardian,  18  Mo.  407. 


148  EXECUTORS    AND   ADMINISTRATORS  §  158 

widow  is  entitled  to  dower,  allowances  and  distribution,  the 
same  as  other  widows. ^^'^  Letters  cannot  be  granted  by 
parol;    nor  by  a  deputy  clerk  in  his  own  name/^^ 

§  158.  Same — Approved  and  Recorded. — Letters  granted 
by  the  clerk  in  vacation  must  be  confirmed  by  the  court  at 
its  next  succeeding  term,  but  are  not  open  to  collateral  at- 
tack until  rejected  by  the  court.^^^  Before  letters  are 
delivered  to  the  executor  or  administrator,  they  must  be  re- 
corded in  the  proper  record,  and  the  clerk  or  judge  of  pro- 
bate must  certify  on  the  letters  that  they  have  been  re- 
corded. A  failure  to  record  the  letters  before  delivering  them 
subjects  the  officer  to  a  fine,  and  a  forfeiture  to  the  party 
injured  of  double  the  damages  occasioned  by  such  default. 
The  letters,  or,  in  case  of  their  loss  or  destruction,  a  copy 
of  the  record,  duly  certified  under  the  seal  of  the  proper 
court,  will  be  received  in  evidence. ^^^  For  letters  testa- 
mentary issued  to  executors  the  statute  prescribes  the  fol- 
lowing form:  ^^* 

Form  of  Letters  Testamentary 

County  of  ,  ss:    The  State  of  Missouri,  to  all  persons  to 

wliom  these  presents  shall  come,  greeting:  Know  ye,  that  the  last 
will  of  A.  B.,  deceased,  hath,  in  due  form  of  law,  been  exhibited, 
))roved  and  recorded,  a  copy  of  which  is  hereto  annexed;  and,  in- 
asmuch as  it  appears  that  C.  D.,  has  been  appointed  executor  in  and 
by  the  said  last  will,  to  execute  the  same,  and  to  the  end  that  the 
property  of  the  testator  may  be  preserved  for  those  who  shall  appear 
to  have  a  legal  right  or  interest  therein,  and  that  the  said  last  will 
may  be  executed  according  to  the  request  of  the  testator,  we  do 
hereby  authorize  him,  the  said  C.  D.,  as  such  executor,  to  collect 
and  secure,  all  and  singular,  the  goods  and  chattels,  rights  and  cred- 
its, which  were  of  the  said  A.  B.,  at  the  time  of  his  death,  in  whose- 
soever possession  the  same  may  be  found,  and  to  perform  and  fulfill 
all  such  duties  as  may  be  enjoined  upon  him  by  said  will,  so  far  as 
there  shall  be  property,  and  the  law  charges  him,  and  in  general  to 
do  and  perform  all  other  things  which  now  are,  or  hereafter  may  be, 
required  of  him  by  law.     In  testimony  whereof,  I,  P.  S.,  clerk  of  the 

probate  court  in  and  for  said  county  of ,  have  hereunto  signed 

my  name  and  affixed  the  seal  of  said  court,  at  ofiice,  this day 

of ,19—.  P.  S.,  Clerk. 

110  Norton  v.  Thompson,  68  Mo.  143. 

111  Stewart  v.  Cave,  1  Mo.  75.j. 

112  Rev.  St.  1909,  §§  9,  10;    Potter  v.  Adams'  Ex'rs,  24  Mo.  159-163; 
Macey  v.  Stark,  110  xMo.  481,  21  S.  W.  1088. 

113  Rev.  St.  1909,  §§  42,  44. 

114  Rev.  St.  1909,  §  44. 


§  158  EXECUTORS   AND   ADMINISTRATORS  140 

And  for  letters  (jf  administration  it  prescribes  the  follow- 
ing form  :  ^^^ 

P'onii   of  Letters  of  Administration 
The  State   of  Missuuri, 


Couuty  of .         I 

To  all  persons  to  whom  these  presents  shall  come,— greeting: 

Know  ye,  that  whereas,  A.  li.,  late  of  the  county  of  ,  died 

Intestate,  as  it  is  said,  having,  at  the  time  of  his  death,  property  in 
this  state  whidi  may  be  lost,  destroyed,  or  diminished  in  value,  if 
speedy  care  be  not  taken  of  the  same;  to  the  end,  therefore,  that  said 
property  may  be  collected,  preserved  and  disposed  of  according  to 
law,  we  do  hereby  appoint  C.  D.  as  administrator  of  all  and  singular 
the  goods  and  chattels,  rights  and  credits,  which  were  of  the  said 
A.  B.,  at  the  time  of  his  death,  with  full  power  and  authority  to 
secure  and  dispose  of  said  property  according  to  law,  and  to  collect 
all  moneys  due  said  deceased,  and  in  general  to  do  and  perform  all 
other  acts  and  things  which  are,  or  hereafter  may  be,  retjuired  of 
him  by  law. 

In  testimony  whereof,  I.  P.  S.,  clerk  of  the  probate  court  in  and 

for  the  county  of  ,  aforesaid,  have  hereunto  signed  my  name, 

and  affixed  the  seal  of  said  court,  at  office,  this day  of , 

19_.  P.  S.,  Clerk. 

Letters  of  administration,  with  the  will  annexed,  or  de 
bonis  non,  or  during  minority,  or  absence,  should  be  issued 
in  conformity  to  the  foregoing  forms  as  near  as  may  be, 
making  the  necessary  variations,  additions  or  omissions  to 
suit  each  particular  case.  The  following  forms  of  letters 
of  administration  with  the  will  annexed  and  administration 
de  bonis  non  will  be  found  useful: 

Letters  of  Administration,  u^ith  the  Will  Annexed 


County  of ,  ss. 

The  State  of  Missouri,  to  all  to  whom  these  presents  shall  come, 
greeting: 
Know  ye,  that  the  last  will  of  R.  R.,  deceased,  hath  in  due  form 
of  law  been  exhibited,  proved  and  recorded,  a  copy  of  which  is  here- 
to annexed ;  and,  whereas,  B.  R.,  who  is  In  and  by  said  will  appoint- 
ed executrix  thereof,  has  refused  to  accept  such  trust  and  execute 
said  will;  to  the  end.  therefore,  that  the  property  of  the  testator 
may  be  preserved  for  those  who  shall  appear  to  have  legal  right  or 
interest  therein,  and  that  the  said  last  will  may  be  executed  accord- 
ing to  the  request  of  the  testator,  we  do  hereby  appoint  N.  M.  ad- 
ministrator, with  the  will  of  the  said  K.  R.  annexed,  and  authorize 
him,  the  said  N.  M..  as  such  administrator,  to  collect  and  secure,  all 
and  singular,  the  goods  and  chattels,  rights  and  credits,  which  were 
of  the  said  R.  R.,  at  the  time  of  his  death,  in  whose  possession  the 

• 
lie  Rev.  St.  1909,  §  45. 


150  EXECUTORS   AND   ADMINISTRATORS  §  158 

same  may  be  found,  and  to  perform  and  fulfill  all  such  duties  as  may 
be  enjoined  upon  him  by  said  will,  so  far  as  there  shall  be  property 
and  the  law  charges  him,  and  in  general  to  do  and  perform  all  other 
things  which  now  are,  or  hereafter  shall  be,  required  of  him  by  law. 
In  testimony  whereof,  etc. 

\Mien  letters  with  the  will  annexed  have  been  granted 
during"  the  absence  of  the  executor  named  in  the  will,  he 
will  be  entitled  to  qualify  on  his  return. ^^^ 

Letters  of  Administration  De  Bonis  Non 


County  of ,  ss. 

The  State  of  Missouri,  to  all  persons  who  shall  see  these  presents, 
greeting: 

Know  ye,  that  whereas  O.  R.,  late  of  said  county,  died  intestate, 
as  it  Is  said,  having  at  the  time  of  his  death  property  in  this  state ; 
and.  whereas,  letters  of  administration  on  the  estate  of  said  O.  R., 

deceased,  were,  on  the day  of ,  19 — ,  granted  to  H.  R., 

of  said  county,  who  then  and  there  took  upon  himself  the  adminis- 
tration of  said  estate ;    and.  whereas,  on  the day  of  , 

19 — ,  the  said  H.  R.  departed  this  life,  [or  was  removed  or  resigned,] 
(state  the  facts  showing  the  cessation  of  his  administratorship,) 
leaving  a  part  of  said  estate  unadministered  ;  now,  therefore,  to  the 
end  that  said  estate  may  be  duly  and  fully  administered  and  legally 
disposed  of,  we  do  hereby  appoint  J.  R.  administrator  of  all  and 
singular,  the  goods  and  chattels,  rights  and  credits  which  were  of 
the  said  O.  R.  at  the  time  of  his  death,  and  which  were  not  ad- 
ministered by  the  said  H.  R.,  with  full  power  and  authority  to  secure 
and  dispose  of  .said  property  according  to  law,  and  collect  all  moneys 
due  said  deceased,  and  to  do  and  perform  all  other  acts  and  things 
which  are,  or  hereafter  may  be,  required  of  him  by  law. 

In  testimony  whereof,  etc. 

§  159.  Same — Authority  Conferred  by  Letters. — Letters 
of  administration  have  no  extra-territorial  force,  and  an  ad- 
ministrator cannot  sue  in  the  courts  of  any  other  state,  or 
take  possession  of  property  there  without  becoming  a  tres- 
passer, unless  he  qualifies  as  administrator  under  the  laws  of 
the  state  where  the  suit  is  to  be  brought  or  the  property  is 
located.^ ^'^  The  right  of  the  foreign  administrator  in  rela- 
tion to  such  matters  would  be  governed  by  the  statute  of  the 
state  where  the  property  is  situated,  or  the  suit  is  intended  to 
be  brought. ^^^     A   foreign   administrator   cannot  maintain   a 

lie  In  re  Estate  of  Estes,  65  Mo.  App.  38. 

117  Emmons  v.  Gordon,  140  .Alo.  490,  41  S.  W.  99S,  62  Am.  St.  Rep. 
1?A. 

118  Emmons  v.  Gordon,  140  Mo.  490,  41  S.  W.  99S.  62  Am.  St.  Rep. 
734;    Cabanne  v.  Skinker,  56  Mo.  357;    Crohn  v.  Clay  County  State 


§   IGO  EXKCUTORS    AND    ADMINISTRATORS  151 

suit  in  Missouri  to  recover  a  debt  due  the  decedent.""  But 
if  such  cuhninistrator  has  recovered  a  judj^nnent  as  achninis- 
trator,  he  may  sue  upon  the  judgment  in  his  individual  ca- 
pacity/-" 

A  foreign  domiciHary  administrator  is  entirely  without  au- 
thority, or  title  to  receive  ])ayment  of  a  debt  due  the  estate  by 
a  resident  of  this  state.  Payment  of  a  debt  to  such  adminis- 
trator of  the  creditor  constitutes  no  defense  against  the  resi- 
dent administrator,  although  payment  is  made  before  the  ap- 
pointment of  the  resident  administrator.  Such  has  been  the 
holding  of  the  Kansas  City  Court  of  Appeals  of  this  state,  this 
conclusion  being  based  on  the  premise  that  resident  creditors 
have  a  right  superior  to  heirs.^-^  Neither  a  foreign  admin- 
istrator nor  a  foreign  guardian  has  power  to  lease  land  in  this 
state,  and  notes  given  for  a  such  a  lease  would  fail  for  want 
of  consideration ;  nor  can  there  be  a  ratification  of  such 
lease. ^'^ 

Although  the  executor  derives  his  power  from  the  will,  he 
can  only  dispose  of  real  estate  as  authorized  by  the  will  and 
in  conformity  with  the  laws  of  the  state  where  he  attempts  to 
act  under  the  will.^-^' 

The  probate  of  a  will  in  the  probate  court  and  the  grant  of 
letters  will  not  sustain  a  conveyance  made  by  the  devisee  of 
land,  if  the  will  be  afterward  contested  and  set  aside. ^-* 

§  160.  The  Revocation  of  Letters — Effect  Thereof. — 
Letters  testamentary  may  be  revoked  without  affecting  the  val- 
idity or  probate  of  the  will,  but  if  the  will  be  set  aside  the  let- 
ters will  be  revoked  and  others  granted  of  the  goods  unad- 
ministered.^"  If  a  will  of  the  deceased  be  found  and  proven 
after  letters  of  administration  are  granted,  the  letters  will  be 

I?aiik,  1.37  :Mo.  App.  712.   lis  S.   W.  4r)S ;    Turner  v.   Caiiiplicll,  1124 
Mo.  App.  13.3.  101  S.  W.  11!). 

119  Gregory  v.  McConnick.  Il20  Mo.  G.">7.  25  S.  W.  565;  Soimuer  v. 
Franklin  Bank.  lOS  Mo.  App.  490,  S3  S.  W.  1025;  Miller  v.  Hoover. 
121  Mo.  App.  568,  97  S.  W.  210. 

120  Tittman  v.  Thornton.  107  Mo.  500,  17  S.  W.  979.  16  L.  R.  A.  410; 
Miller  v.  Hoover.  121  Mo.  App.  5(;s.  97  S.  W.  210. 

121  Crohn  v.  Clay  County  State  Hank.  137  Mo.  App.  712.  US  S.  W. 
498. 

122  Crockett  v.  Althouse,  35  Mo.  App.  404;  I'otter  v.  Bassett,  35 
Mo.  App.  417. 

i23Eimmous  v.  Gordon,  140  Mo.  490,  41  S.  W.  998,  62  Am.  St. 
Rep.  734. 

124  Hughes  V.  Burriss.  85  Mo.  660;    Benoist  v.  M\n-iin,  48  Mo.  48. 

125  Rev.  St.  1909,  §  48. 


152  EXECUTORS  AND   ADMINISTRATORS  §  160 

revoked  and  letters  testamentary  or  of  administration  with 
the  will  annexed  will  be  granted.'-^  But  all  acts  done  by  the 
administrator  in  the  due  course  of  administration  previous  to 
the  revocation  of  his  letters  are  valid  and  binding  on  all  in- 
terested in  the  estate.^-'  The  marriage  of  an  executrix  or  ad- 
ministratrix extinguishes  her  power  as  such,  and  her  letters 
will  be  revoked.^-**  No  order  of  court  is  necessary  in  such 
case.^-^  A  non-resident  should  not  be  appointed,  and  if  an 
executor  or  administrator  becomes  a  non-resident  of  the  state, 
his  letters  will  be  revoked.  But  non-residence  will  not  of  it- 
self work  a  revocation  of  letters;  an  order  or  judgment  of 
the  court  is  necessary  to  produce  that  result.^ ^° 

The  revocation  of  letters  was  supposed  before  the  statute 
of  21  Henry  VIII,  to  rest  in  the  pleasure  of  the  ordinary.  Since 
that  statute,  such  letters  have  not  been  revoked  in  England 
but  for  some  just  cause.^^^  Chancellor  Kent  says  that  if  let- 
ters have  been  unduly  granted  they  may  be  revoked.^^^  No 
doubt,  if  letters  should  be  granted  inadvertently  to  a  person 
excluded  from  administering  by  the  statute,  such  letters  may 
be  recalled  or  revoked.  And  if  it  should  appear  that  a  pend- 
ing administration  is  without  authority  of  law,  it  would  be  the 
duty  of  the  court  to  revoke  the  letters  and  stay  further  pro- 
ceedings.^'" 

§  161.  Same  —  Statutory  Grounds  Therefor.  —  The 
grounds  for  revoking  letters  testamentary  and  letters  of  ad- 
ministration for  cause  are  the  same,  and  the  subject  is  very 
fully  anticipated  by  the  statute.  It  is  provided  that  if  any  ex- 
ecutor or  administrator  become  of  unsound  mind,  or  be  con- 
victed of  any  felony,  or  other  infamous  crime,  or  has  absented 
himself  from  the  state  for  the  space  of  four  m.onths,  or  be- 
come an  habitual  drunkard,  or  otherwise  incapable  or  unsuit- 
able to  execute  the  trust  reposed  in  him,  or  fail  to  discharge 
his  official  duties,  or  waste  or  mismanage  the  estate,  or  act  so 
as  to  endanger  any  co-executor  or  co-administrator,  the  court, 
upon  complaint  in  writing  made  by  any  person  interested,  sup- 

126  Rev.  St.  1009,  §  47. 

127  Tapley  v.  McPike,  50  Mo.  o'^O. 

128  Rev.  St.  1909.  §  49:    Frje  v.  Kimhall.  IG  Mo.  9. 
i29Carr  v.  Spannasel,  4  Mo.  .\pp.  2S4. 

130  State  ex  rel.  Rucker  v.  Ilucker,  59  Mo.  17. 

131  1  Williams,  Ex'rs,  508. 

132  2  Kent's  Com.  413. 

133  McCabe  v.  Lewis,  76  Mo.  296;  Skelly  v.  Veerkamp,  30  Mo.  App. 
49. 


§  161  EXECUTORS   AND  ADMINISTRAT0E8  153 

ported  by  affidavit,  and  ten  days'  notice  given  to  the  person 
complained  of,  will  hear  the  complaint,  and  if  it  finds  it  just, 
will  revoke  the  letters  granted/''* 

Appeal  lies  from  the  order  of  the  probate  court  revoking 
the  letters  of  administration. ^^"^  If,  upon  a  survey  of  the 
whole  administration,  it  appears  that  the  administrator  is  wast- 
ing the  estate,  or  abusing  his  trust  to  the  prejudice  of  those 
interested  in  the  estate,  he  should  be  removed.^ ^'^  If  the  money 
or  property  of  the  deceased  was  converted  by  another  in  his 
life  time,  and  the  executor,  having  knowledge  of  the  facts,  re- 
fuses to  take  proper  steps  to  recover  it,  he  is  guilty  of  mis- 
management and  should  be  removed.^"  f  i-,g  complaint  should 
be  specific  in  its  allegations  of  misconduct  on  the  part  of  the 
administrator  or  it  will  be  open  to  a  motion  to  make  more 
definite  and  certain. ^^^^  Ten  days  notice  shall  be  given  to  the 
executor  or  administrator  affected  before  the  complaint  shall 
be  heard  by  the  court.  This  notice  may  be  served  by  sherifiF, 
constable  or  competent  watness  and  shall  set  forth  the  sub- 
stance of  complaint.  The  return  of  service  shall  be  verified 
by  affidavit.139 

Form  of  Complaint  for  Revocation  of  Letters 

State  of  Missouri,     |gg 

County  of  •  \     '  ^       ,. 

In  the  Matter  of  the  Estate  of  \  In  the  Probate  Court  of  the  County 
A.  B.,  Deceased.  J      of , Term,  19—. 

And  now  on  this  day  comes  J.  B.,  of  said  county,  and  respectfully 
represents  to  the  court  that  he  is  an  heir  at  law  (or  set  forth  the 
interest  of  the  complainant  in  the  estate)  of  A.  B.,  late  of  said  coun- 
ty, deceased,  and  as  such  is  interested  in  the  safe  and  proper  ad- 
ministration of  the  estate  of  the  deceased,  and  entitled  to  distribu- 
tion therein ;  that  C.  D.,  executor  (or  administrator)  of  said  estate, 
has  become  an  habitual  drunkard  (or  insert  the  particular  facts  of 
the  case  upon  which  revocation  is  sought),  and  incapable,  and  un- 
suitable to  execute  the  trust  reposed  in  him.  Complainant  also 
states  that  he  has  given  said  C.  D.,  executor  (or  administrator),  ten 

134  Rev  St.  1909,  §  50;  Meriwether  v.  Block,  31  Mo.  App.  170; 
Stevens  v.  Larwill,  110  Mo.  App.  140,  84  S.  W.  113;  Ow(>ns  v.  Link, 
48  Mo.  App.  5.34.  _^ 

135  Rev.  St.  1909,  §  289;  Mullanphy  v.  St  Louis  County  (  ..urt.  b 
Mo.  568;    Cuendet  v.  Henderson.  106  Mo.  657.  66  S.  W.  1079. 

136  Owens  V.  Link.  48  Mo.  App.  534;  Padgett  v.  Smith,  114  Mo. 
App.  307.  89  S.  W.  886. 

137  iiaynes  v.  Carpenter,  86  Mo.  App.  30. 
i38T>>wellyn  v.  Lewellyn.  87  Mo.  App.  9. 
18  8  Rev.  St.  1909.  §§  50,  280. 


154  EXECUTORS   AND   ADMINISTRATORS  §  161 

days  notice  in  writing  of  this  application  as  is  evidenced  by  said 
notice  together  with  the  proof  of  service  thereof,  herewith  filed  and 
made  iiart  liereof. 

Wherefore,  the  complainant  prays  that  the  letters  testamentary 
(or  of  administration)  lieretofore  granted  to  tlie  said  C.  D.  upon  said 
estate  be  revoked,  and  letters  be  granted  to  some  suitable  person 
entitled  to  same.  J.  B. 

J.  B.,  being  first  duly  sworn,  upon  his  oatli,  says  that  he  lias  read 
the  foregoing  complaint,  and  that  the  matters  and  things  therein 
stated  are  true.  J.  B. 

Sworn  to,  and  subscribed  before  me  this day  of ,  19 — . 

J.  R.  (style  of  oflice.) 

Notice  of  Application  for  Revocation  of  Letters 

To  C.  D.,  Executor  [or  Administrator]  of  tlie  Estate  of  A.  B.,  De- 
ceased: 

You  are  hereby  notified  that  on  the  —  day  of  ,  19 — , 

being  the day  of  the term  of  the  probate  court  of  the 

county  of ,  to  be  held  at  the of in  said  county, 

or  as  soon  thereafter  as  I  can  be  lieard,  I  shall  apply  to  said  court 
for  an  order  revoking  your  letters  as  executor  [or  administrator] 
of  said  estate,  for  the  reasons  following,  to  wit:  [Here  insert  the 
grounds  upon  whicli  the  application  is  based.]  J.  B. 

Dated  at this  day  of ,  19—. 

§  162.     Additional   Bond   and   Revocation   of  Letters. — 

Any  heir,  legatee,  creditor  or  other  [person  interested  in  any 
estate,  may  file  in  the  i:)robate  court  an  affidavit,  stating-  that 
he  has  sufficient  cause  to  believe,  and  does  believe,  that  the 
security  in  the  executor's  or  administrator's  bond  has,  or  is 
likely  to  become  insolvent,  or  has  died,  or  has  removed  from 
the  state,  or  that  the  principal  in  said  bond  has,  or  is  likely  to 
become  insolvent,  or  is  wasting  the  estate,  or  that  the  penalty 
of  the  bond  is  insufficient,  or  that  such  bond  has  not  been  tak- 
en according  to  law,  and  give  at  least  ten  days'  notice  of  the 
complaint  to  the  principal  in  the  bond,  and  the  court  will  ex- 
amine into  the  complaint.  And  any  security  in  such  a  bond 
may  file  his  affidavit,  stating  that  he  has  sufficient  cause  to 
believe,  and  does  believe,  that  his  co-security  has  died,  or  is 
likely  to  become  insolvent,  or  has  removed  from  the  state,  or 
that  the  principal  in  such  bond  has,  or  is  likely  to  become 
insolvent,  or  is  wasting  the  estate,  and  give  the  principal  in 
the  bond  at  least  ten  days'  notice,  and  the  court  will  examine 
into  the  complaint.^ ■*" 

140  Rev.  St.  1909,  §§  34-3G. 


§  162  EXECUTORS   AND   ADMINISTRATORS  155 

Form  of  Affidavit  for  Additional  Bond 

State  of  Missouri, 

County. 

In  tlio Court  of County, Term.  10 — . 

I'er.son;illy   appeared    before   me   tlie   undersijined.    ,   within 

and  for  .said  county,  J.  D.,  of  said  county,  wlio  ijeing  first  duly 
sworn,  upon  oatli  states  tliat  lie  is  an  lieir  at  law  (or  as  the  case  may 
be)  of  K.  K.,  late  of  said  county,  deceased,  and  as  such,  is  interested 
in  said  deceased's  estate,  and  entitled  to  distribution  therein;  that 
he  has  .sutlicient  cause  to  believe,  and  does  believe,  that  E.  F.,  the 
security  in  the  bond  of  A.  I{.,  administrator  of  the  estate  of  said 
R.  R.,  deceased,  has  become  insolvent,  (or  has  died,  or  has  removed 
from  the  state,  or  state  the  particular  facts  constitutiiif^  the  j^round 
of  complaint). 

He  therefore  asks  the  court  to  examine  into  the  complaint  of  this 
aftiant.  and  if  the  same  be  found  to  be  just,  that  another  bond  and 
sutlicient  security  be  required  to  be  j^iven.  J D . 

Sworu  to  and  subscribed  before  me,  this day  of ,  19 — . 

J R , 

(Style  of  oflice.) 

Form   of  Notice   to  Principal   of  Complaint   for  Additional 

Bond,  Fjc. 

To  A.  B.,  Executor  of  the  Estate  of  R.  R..  deceased: 

You  are  hereby   notified  that  I,  J.   D..  an  heir  at  law  of  R.  R.. 

deceased,  have  filed  in  the  court  of  the  county  of and 

state  of  Missouri,  an  affidavit,  stating  that  I  have  sutficieut  cause 
to  believe,  and  do  believe,  that  E.  F..  the  security  in  the  bond  of 
A.  B.,  executor  of  the  estate  of  the  .said  R.  R.,  deceased,  has  become 
insolvent,  (or  state  the  facts  as  set  out  in  the  affidavit),  and  asking 
that  another  bond  and  sufficient  security  be  required  to  be  given; 
and  that  said  conii)Iaint  will  be  exanuned  into  by  the  said  court  on 

tlie  first  day  of  the  next  term  thereof,  to  be  held  at  on  the 

day  of ,  11) — .     Of  which  you  will  take  notice. 

July  — ,  1!)—.  J.  D. 

This  form  may  be  modified  so  as  to  answer  for  a  notice 
in  the  case  of  a  complaint  for  the  revocation  of  letters.  The 
notice  should  be  in  writing-,  and  must  be  served  at  least  ten 
days  before  the  day  on  which  the  complaint  is  set  down  for 
hearing.  The  service  should  be  by  copy,  and  may  be  made 
by  anv  officer  authorized  to  execute  process,  or  by  any  person 
who  may  be  a  competent  witness.  If  the  service  is  by  an 
officer,  his  return  is  sufficient  evidence  of  the  fact ;  but  it  is 
by  any  other  person,  his  affidavit  as  to  the  fact  of  service  is 
required.*''^ 

m  Rev.  St.  I'.H)!).  §  2S0. 


156  EXECUTORS   AND   ADMINISTRATORS  §  1G3 

§  163.     Effect    of    Additional   Bond. — At   the    time    ap- 
pointed, if  it  be  shown  that  the  executor  or  administrator  has 
been  duly  notified  of  the  complaint,  the  court  will  proceed  to 
examine  into  it,  and  if  it  shall  find  the  complaint  to  be  just  and 
true,  it  will  order  another  bond,  with  sufficient  security,  to  be 
given.     The  effect  of  the  additional  bond  when  given   and 
approved,  is  to  discharge  the  former  securities  from  liability 
arising  from  any  misconduct  of  the  principal  after  the  new 
bond  is  filed,  and  the  former  securities  are  only  liable  for  such 
misconduct  as  happened  prior  to  the  giving  of  the  new  bond.^*^ 
But  unless  the  new  bond  is  given  on  complaint  made  in  con- 
formity to  the  statute,  and  is  based  on  the  existence  of  some 
statutory  cause  requiring  it,  the  sureties  on  the  old  bond  are 
not  released,  but  stand  jointly  liable  with  the  new  bondsmen, 
or  as  additional  securities."^     If  the  bond  be  executed  on  the 
basis  of  the  statute,  the  new  bondsmen  are  only  liable  for  mis- 
conduct or  defaults  committed  after  the  new  bond  was  giv- 
en."*    But  if  the  administrator  pledge  the  notes  or  effects 
of  the  estate  for  his  own  purposes,  he  is  guilty  of  a  devastavit, 
but  he  may  retake  such  effects  from  one,  having  notice  of  the 
facts ;   and'  if  he  neglects  to  do  so,  after  a  new  bond  has  been 
given,  it  is  a  continuing  devastavit,  for  which  the  sureties  on 
the  new  bond  are  also  liable."'     If  the  party  fail  to  give  ad- 
ditional bond  and   security  within  five  days  after  the  order 
requiring  it  is  made,  the  court  must  revoke  his  letters,  and 
his  authority  from  that  time  will  cease.""     It  is  the  duty  of 
the  court  to  examine  the  bonds  of  executors' and  administra- 
tors annually,  and  upon  its  own  motion  to  order  an  executor 
or  administrator  to  give  other  and  further  security  whenever 
it  shall  appear  necessary  and  proper  that  he  should  do  so,  first 
giving  him  at  least  ten  days'  notice  of  the  intended  order ;   and 
if  he  shall  fail  to  give  further  security  within  ten  days  after 
making  the  order,  the  court  should  revoke  his  letters,  and  his 

142  Rev.  St.  1900,  §  .37. 

143  Wood  V.  ^Yi]liams,  61  Mo.  63. 

144  State  ex  rel.  .Jacobs  v.  Elliott.  1.57  Mo.  609,  .57  S.  W.  1087,  80 
Am.  St.  Rep.  64.3 ;  Wolff  v.  Srliaeffer,  4  Mo.  App.  307 ;  State,  to  Use 
of  Glenn,  v.  Fields,  .53  Mo.  474 :  State  ex  rel.  Bell  v.  Nolan.  99  Mo. 
.569,  12  S.  W.  1047 ;  State,  to  Use  of  Hockaday.  v.  Woods,  84  Mo.  163. 
Rut  see  State  ex  rel.  Hyslop  v.  Bilby,  50  Mo.  App.  162;  Lincoln 
Trust  Co.  V.  Wolff,  91  Mo.  App.  133;  State,  to  Use  of  Drury,  v. 
Drury,  36  Mo.  281. 

14  5  State,  to  Use  of  Wolff,  v.  Berning,  74  Mo.  87. 
14C  Rev.  St.  1909,  §  38;    State,  to  Use  of  Glenn,  v.  Fields,  53  Mo. 
474 ;    King  v.  King,  73  Mo.  App.  78. 


§  163  EXECUTORS    AND    ADMINISTRATOES  157 

autliority  fn^ii  that  time  will  cease.^*^  The  bond  given  under 
this  statute  dues  not  supersede  the  former  one,  but  is  cumu- 
lative and  additional  to  it,  and  the  former  sureties  are  still 
liable.^*^ 

Form  of  Citation  to  Executor  or  Administrator  to  Shozv  Cause 

Why  His  Letters  Should  Not  be  Revoked,  or  Give 

Additional  Bond  or  further  Security 

State  of  Missouri,  | 

County.     I 

Tlie  State  of  Missouri,  to  A.  B.,  executor  of  the  last  will  of  R.  R.. 
deceased,  greeting: 

Your  are  hereby  cited  personally  to  be  and  appear  Ix-fore  the  pro- 
bate court  of  the  county  of ,  at  the  court  house  in  the  city  of 

,  the  county  seat  of  said  county,  on  the day  of , 

19_^  the  same  being  the day  of  the term  of  said  court, 

to  show  cause,  if  any  you  can,  why  [the  letters  testamentary  on  the 
last  will  of  R.  R.,  deceased,  heretofore  granted  to  you  should  not  be 
revoked]  (or  omit  what  is  in  brackets  and  add  the  matter  required 
of  him,  as)  you  should  not  be  required  to  give  other  and  further 
security  (or  additional  bond,)  on  your  bond  as  executor  of  the  last 
will  of  R.  R..  deceased,  and  to  further  do  and  receive  what  shall  be 
ordered  by  the  court  in  the  premises. 

In  witness  whereof,  I  have  subscribed  my  name  and  affixed  here- 
unto the  seal  of  said  court,  at ,  this day  of ,  1&— . 

P.  MERCER, 

[P^,  S.]  (Style  of  office.) 

Form   of  Order  in   Case  of  Complaint  for  Revocation,  Etc. 

J.  D. 

vs. 
A.  B.,  executor  of  the  last  will  of  R.  R.,  deceased.  ^ 

Now,  at  this  time  come  the  parties,  and  the  court,  having  heard 
the  evidence  and  examined  into  the  complaint  of  said  -J.  D.  in  his  be- 
half made  against  the  said  A.  B.,  executor  of  the  last  will  of  R.  R., 
deceased,  doth  find  that  the  said  A.  B.  is  an  habitual  drunkard,  in- 
capable and  unsuitable  to  execute  the  trust  repo.sed  in  him;  it  Is 
therefore  ordered  and  adjudged  by  the  court  that  the  letters  testa- 
mentary heretofore  issued  to  the  said  A.  B.  on  the  last  will  of  R.  R., 
deceased,  be  and  the  same  are  hereby  revoked  and  superseded. 

If  the  finding  is  for  the  defendant  change  the  order  accord- 
ingly. This  form  can  be  easily  adapted  to  any  case  of  com- 
plaint for  revocation  of  letters. 

147  Rev.  St.  1909,  §  39;    ante,  §  152. 

14  8  State,  to  L'se  of  Glenn,  v.  Fields,  53  Mo.  47-4;  Haskell  v.  Far- 
rar,  56  Mo.  497 ;  Wood  v.  Williams,  61  Mo.  63 ;  Wolff  v.  Schaefifer, 
4  Mo.  App.  367. 


158  EXECUTORS   AND   ADMINISTRATORS  §  163 

Form  of  Order  on  Complaint  for  Additioiml  Bond 

J.  D. 

vs. 
A.  B.,  administrator  of  the  estate  of  R.  R.,  deceased.^ 

Now  comes  tlie  complainant,  J.  D.,  and  sliows  to  tlie  court  by  a  no- 
tice (or  citation)  issued  and  directed  to  tlie  defendant,  and  an  affi- 
davit of  the  due  service  thereof  on  said  defendant,  that  he  has 
given  said  defendant  more  than  ten  days'  notice  of  the  tiling  of  the 
complaint  in  his  behalf,  and  that  the  same  would  be  heard  by  the 
court  at  this  time;  and  no  one  appearing  to  oppose  the  complaint, 
and  the  court  having  heard  the  evidence  and  examined  into  the  com- 
plaint (or  say  now  come  the  parties  and  the  court  having  heard  the 
evidence  and  examined  into  the  complaint),  doth  find  it  to  be  just 
and  true,  that  E.  F.,  the  security  in  the  bond  of  A.  B.,  as  adminis- 
trator of  the  estate  of  R.  R.,  has  become  insolvent,  and  the  security 
in  said  bond  is  insufficient,  it  is  therefore  ordered  that  said  A.  B. 
shall  give  another  bond,  with  sufficient  securities  as  administrator 
of  said  estate,  within  ten  days  hereof,  and  iu  default  thereof,  his 
letters  will  be  revoked. 

This  form  mav  be  adapted  to  any  cause  of  complaint  for 
additional  bond  or  for  further  security.  If  the  finding  be  for 
the  defendant,  change  the  order  accordingly. 

§  164.  Notice — How  Given  When  Administrator  Has 
Left  the  State.— When  it  is  necessary  to  cite  an  executor  or 
administrator  to  give  other  and  further  security,  or  for  any 
cause  to  answer  why  his  letters  should  not  be  revoked  and  the 
court  is  satisfied  from  the  evidence  of  competent  witnesses 
that  the  executor  or  administrator  has  left  the  state  with  the 
intent  to  change  his  domicile,  it  will  be  sufficient  to  put  up  a 
notice  on  the  front  door  of  the  court  house  and  mail  to  the 
last  known  postoffice  address  of  said  party  a  copy  of  said 
notice  by  registered  letter,  thirty  days  before  the  term  at 
which  said  hearing  is  to  be  had.^*® 

§  165.  Resignation  of  Executor  or  Administrator. — It  is 
provided  by  statute  that,  if  any  executor  or  administrator 
shall  publish,  for  four  weeks,  in  some  newspaper  published 
in  the  county  where  the  proceedings  are  had,  if  there  be  one, 
and  if  not,  in  the  nearest  newspaper  to  such  county,  a  notice 
of  his  intention  to  apply  to  the  proper  court  to  resign  his  let- 
ters, and  the  court,  on  proof  of  such  publication,  and  for  good 
cause  shown,  shall  believe  that  he  should  be  permitted  to  re- 
sign, it  shall  so  order.     The  notice  must  be  published  four 

14  9  Rev.  St.  1909,  §  40. 


§  165  EXECUTOES    AND    ADMINISTRATORS  159 

weeks,  there  being  twenty-eiglit  days  at  least  between  the  first 
insertion  and  the  time  at  which  he  intends  to  apply  to  the  court 
to  resign. ^^"  The  party  must  then  surrender  his  letters,  his 
power  from  that  time  ceases,  and  he  must  pay  the  expenses 
of  publication  and  all  the  proceedings  on  the  application,  and 
the  same  shall  not  be  taxed  against  the  estate. ^-"'^  The  law  in- 
dulges the  presumption,  in  the  absence  of  a  contrary  showing, 
that  the  court's  orders  and  judgments  are  regular  and  founded 
on  sufficient  notice.^ ^^ 

Form  of  Notice  of  Resignation 

State  of  Missouri,  )  To  the  terin  of  the  Trobate  Court, 

County.     \  A.  D..  10—. 

In  the  matter  of  the  estate  of  )..,  ..        *  t>     •       *-•  ., 
^  ■    ^      ,  ,  f  ^otlce  of  Resignation. 

R.  R.,   deceased.  j 

To  all  Persons  Concei'ned: 

Take  notice,  that  the  uudersis^ned,  administrator  of  the  estate  of 

R.  R.,  late  of  said  county,  deceased,  will  at  the term  of  said 

court  to  be  held  at  the  court  house  in  the  town  of ,  the  county 

seat  of  said  county,  on  the day  of ,  19 — ,  apply  to  said 

court  for  leave  to  resign  the  office  and  trust  of  administrator  of  said 
estate.  A.  B., 

Administrator  of  R.  R.,  Deceased. 

Dated  ,  19—. 

A  copy  of  the  advertisement,  with  the  affidavit  of  the  pub- 
lisher of  the  paper,  should  be  attached  to,  or  presented  with, 
the  resignation. 

The  resignation  must  be  in  writing.  The  following  form 
may  be  used : 

Form   of  Resignation 

State  of  Missouri,  1  In    the    Court    of    County, 

County.     I  term.  A.  D.  19—. 

In  the  matter  of  the  estate  of"|  _,     . 

-^    --,      ,  ,  ^Resignation. 

R.  R.,  deceased.  | 

To  the Court  of County: 

I,  the  undersigned,  administrator  of  the  estate  of  R.  R.,  deceased, 

having  given  the  notice  thereof  required  by  law,  as  will  appear  by 

the  proof  of  the  same  herewith  tiled,  do  hereby  resign  my  office  as 

administrator  of  the  estate  of  the  said  R.  R.,  deceased,  and  ask  that 

isoRatliff  V.  Magee,  1G5  Mo.  401,  (i.j  S.  W.  713. 

151  Rev.  St.  1909,  §§  51,  G7 :  State  ex  rel.  Koch  v.  Roeper,  0  Mo. 
App.  21 ;    State,  to  I'se  of  Wagenniann,  v.  Rosswaag,  3  INIo.  App.  11. 

152  State  ex  rel.  Fountain  v.  Gray,  100  Mo.  52(5.  17  S.  W.  500; 
Macey  v.  Stark,  116  Mo.  481,  21  S.  W.  1088;  Rogers  v.  Johnson, 
125  Mo.  202,  28  S.  W.  035;  Young  v.  Downey,  145  Mo.  250,  40  S. 
W.  1086,  08  Am.  St.  Rep.  568. 


160  EXECUTORS    AND    ADMINISTRATORS  §  165 

my  resignation  be  accepted,  and  that  I  be  discliarged  from  the  fur- 
ther exercise  of  said  oflice.  A.  B., 

Administrator  of  R.  R.,  Deceased. 

The  acceptance  of  the  resignation  must  be  entered  of  record. 

Form  of  Order  Accepting  Resignation 

In  the  matter  of  the  estate  of 

R.  R.,  deceased. 
Resignation  of  Administrator. 

Now  comes  A.  B.,  administrator  of  R.  R.,  deceased,  and  presents 
to  the  court  his  resignation  as  administrator  of  said  estate;  and  it 
appearing  to  the  court  that  due  notice  of  his  intention  to  apply  to 
the  court  at  this  time  to  resign  his  office  as  such  administrator,  has 

been  given  by  publication  of  such  notice  for  four  weeks  in  the , 

a  newspaper  published  in  the  town ,  county  of  — ,  and  the 

said  A.  B.,  having  adjusted  with  the  court  an  account  of  his  admin- 
istration of  said  estate,  and  paid  over  all  moneys,  effects  and  choses 
of  action,  etc.,  according  to  law ;  and  the  court  being  sufficiently  ad- 
vised in  the  premises,  believes  that  said  administrator  has  shown 
good  cause  and  should  be  permitted  to  resign ;  it  is  therefore  ordered 
and  adjudged  that  the  resignation  of  the  said  A.  B.,  as  administra- 
tor of  R.  R.,  deceased,  be  accepted,  and  that  he  be  discharged  from 
further  duties  of  .said  office. 

§  166.  Proceedings  on  Revocation  of  Letters,  Resigna- 
tion or  Death  of  Executor. — Where  there  are  more  execu- 
tors or  administrators  than  one,  and  the  letters  of  part  of 
them  be  revoked,  or  surrendered,  or  a  part  die,  the  remaining 
executor  or  administrator  will  administer  the  estate  and  dis- 
charge all  duties  required  by  law  respecting  it.  But  if  all  the 
executors  or  administrators  of  an  estate  die,  or  resign,  or  their 
letters  be  revoked,  or,  after  final  settlement  of  an  estate  is  had, 
and  the  executor  or  administrator  has  been  discharged,  un- 
administered  assets  of  the  estate  be  discovered  after  such 
final  discharge,  and  there  are  unpaid  allowed  demands  against 
said  estate,  or  in  cases  not  otherwise  provided  for,  letters  of 
administration  of  the  goods  remaining  unadministered  will 
be  granted  to  those  who  would  have  been  entitled  to  admin- 
ister if  the  original  letters  had  not  been  granted,  or  the  per- 
sons obtaining  them  had  renounced  their  right  thereto,  and 
the  administrator  thus  appointed  will  perform  the  like  duties 
and  incur  the  like  liabilities  of  the  former  executors  or  ad- 
ministrators.^^^ The  administrator  so  appointed  stands  in  the 
attitude  of  his  predecessor,  and  may  sue  for  the  unadminis- 

153  Rev.  St.  1909,  §§  5.3,  54;  Derge  v.  Hill,  10.3  Mo.  App.  281,  77 
S.  W.  105;    Pullis  v.  Pullis,  127  Mo.  App.  294,  105  S.  W.  275. 


§  167  EXECUTORS   AND   ADM1NISTEATOB8  161 

tered  assets.^'^'  On  the  death,  revocation  of  the  letters,  or 
resignation  of  an  administrator,  or  executor,  he,  or  his  legal 
representatives,  must  account  for,  pay  and  deliver  to  his  suc- 
cessor, or  the  surviving  or  remaining  executor  or  administra- 
tor, all  money,  real  and  personal  property  of  every  kmd,  and 
all  rights,  credits,  deeds,  evidences  of  debt,  and  such  papers 
of  every  kind  of  the  deceased,  at  such  times  and  in  such  man- 
ner as  the  court  shall  order,  on  final  settlement  with  such  ad- 
ministrator or  executor,  or  his  legal  representatives,  to  be 
made  on  motion  of  his  successor  or  remaining  or  surviving 
executor  or  administrator.^"  The  succeeding  administrator, 
or  remaining  executor  or  administrator,  may  proceed  at  law 
against  the  delinquent  and  his  securities,  or  either  of  them, 
or  against  any  other  person  having  any  part  of  the  estate.  But 
suits  against  securities,  in  such  case,  must  be  commenced  with- 
in seven  years  after  the  revocation  or  surrender  of  the  letters 
or  the  death  of  the  principal. ^^^  This  section  of  the  statute 
applies  only  to  suits  on  prior  administrator's  or  executor's 
bond  brought  by  successor,  or  administrator  '"de  bonis  non." 
Other  actions  on  bond  may  be  commenced  within  ten  years.^" 
§  167.  Same. — The  administrator  de  bonis  non  is  enti- 
tled to  the  possession  of  all  property  belonging  to  the  estate 
which  was  in  the  possession  of  the  former  administrator,  and 
so  long  as  it  can  be  identified  as  part  of  such  estate,  he  may 
recover  it,  but  if  the  property  cannot  be  identified,  he  must,  for 
the  deficiency,  fall  into  the  proper  class  of  creditors  of  the 
deceased  administrator,^^^  or  pursue  his  remedy  against  the 
sureties,  in  his  bond.  The  principle  of  the  common  law, 
which  entitled  an  administrator  de  bonis  non  to  those  goods 
only  which  remain  in  specie  and  not  administered  by  the  first 
administrator,  is  not  applicable  to  our  system  of  administra- 

154  state  ex  rel.  Fountain  v.  Gray,  106  Mo.  526,  17  S.  W.  500; 
Cowgill  V.  Linnvlllo.  20  Mo.  App.  138 ;  State,  to  Use  of  Coste.  v.  Ful- 
ton, 35  Mo.  323;  Emmons  v.  Gordon,  125  Mo.  630,  2S  S.  W.  S63 ; 
In  re  Estate  of  Glover.  127  Mo.  153,  29  S.  W.  982 ;  State  ex  rel.  Kar- 
renbrock  v.  Mississippi  Valley  Trust  Co..  209  Mo.  172,  108  S.  W.  97. 

155  Rev.  St.  1909.  §  55;  In  re  Estate  of  Glover.  127  Mo.  153.  29 
S.  W.  982 ;    State  ex  rel.  Fountain  v.  Gray,  106  Mo.  526,  17  S.  W.  500. 

150  Rev.  St.  1909.  §§  62,  aS;  State  ex  rel.  Langston  v.  Zorn,  138 
Mo.  App.  713,  119  S.  W.  517. 

157  Nelson  v.  Barnett,  123  Mo.  564,  27  S.  W.  520;  State  ex  rel. 
Enterprise  Mill.  Co.  v.  Brown,  208  Mo.  613,  106  S.  W.  6.30. 

158  Gamble  v.  Hamilton,  7  Mo.  409;  Morehouse  v.  Ware.  78  Mo. 
100;    I^riniore  v.  Bobb.  114  Mo.  446,  21  S.  W.  922;    Booker  v.  Arm- 

Kel.Mo.F.G.— 11 


1G2  EXECUTORS   AND   ADMINISTRATORS  §  168 

tion.^^®  It  is  the  right  and  duty  of  such  an  administrator  to 
close  up  and  finally  settle  the  whole  of  the  remainder  of  the 
estate,  precisely  as  if  he  had  had  it  in  charge  from  the  first, 
and  he  may  sue  upon  the  bond  of  the  former  administrator 
for  any  devastavit  or  failure  to  account.^ '^** 

§  168.  Same — Former  Administrator  Required  to  Settle, 
Etc. — The  statute  provides  that  if  any  executor  or  adminis- 
trator resign,  or  his  letters  be  revoked,  it  shall  be  the  duty  of 
his  successor  or  of  the  remaining  executor  or  administrator  to 
move  the  court  to  compel  him  to  make  final  settlement ;  and 
on  such  motion,  after  due  notice  to  him,  the  court  must  ascer- 
tain the  amount  of  money,  the  quantity  and  kind  of  real  and 
personal  property,  and  all  the  rights,  deeds,  evidences  of  debt 
and  papers  of  every  kind,  of  the  testator  or  intestate,  in  the 
hands  of  such  executor  or  administrator,  or  that  came  into  his 
hands  and  remain  unaccounted  for  at  the  time  of  his  resigna- 
tion or  removal  from  office,  or  revocation  of  his  letters  (and 
to  order  and  adjudge  the  rendition  of  the  same  to  the  succes- 
sor of  such  executor  or  administrator),  and  to  enforce  such 
order  and  judgment  against  such  executor  or  administrator 
and  his  sureties,  if  they  had  due  notice  of  the  proceeding,  or 
against  either  of  them ;  first,  for  the  amount  of  money  speci- 
fied in  the  judgment,  by  execution  in  the  ordinary  form;  sec- 
ond, for  all  other  estate,  effects  and  paper  described  in  the 
judgment  or  order,  by  attachment  against  the  person  or  prop- 
erty of  such  executor  or  administrator.^'^^  If  any  executor  or 
administrator  die,  the  court  may,  upon  like  application,  ascer- 
tain the  amount  of  money  in  the  hands  of  the  deceased  exe- 
cutor or  administrator,  or  that  came  into  his  hands  and  re- 
mained unaccounted  for,  in  his  representative  capacity,  at 
the  time  of  his  death,  and  render  judgment  against  his  secur- 
ities for  the  amount  so  ascertained,  and  enforce  the  same  by 
execution  in  the  ordinary  form.^^^     And  the  court  may  also 

strong,  93  Mo.  40,  4  S.  W.  727;  Powell  v.  Hurt,  .31  Mo.  App.  632; 
State  ex  rel.  Langston  v.  Zorn,  138  Mo.  App.  713,  119  S.  W.  517. 

i-'f  Skinner  v.  Ellington,  15  Mo.  490;  Rozelle  v.  Harmon,  103  Mo. 
339,  15  H.  W.  4.32,  12  L.  R.  A.  187. 

160  State,  to  Use  of  Rarland,  v.  Porter,  9  Mo.  356;  State,  to  Use 
of  Shields,  v.  Flynn,  48  Mo.  413;  State,  to  Use  of  Coste,  v.  Fulton, 
35  Mo.  323;  State  ex  rel.  Langston  v.  Canterbury,  124  Mo.  App.  241, 
101  S.  W.  078. 

iGiRev.  St.  1909,  §  56;  State  ex  rel.  Langston  v.  Zorn,  138  Mo. 
App.  71.3,  119  S.  W.  517;  State  ex  rel.  Langston  v.  Canterbury,  124 
Mo.  App.  241.  101  S.  W.  678. 

162  Rev.  St.  1909,  §  57. 


§  168  EXECUTORS   AND   ADMINISTRATORS  163 

ascertain  what  quantity  and  kind  of  real  and  personal  prop- 
erty, rights,  credits,  deeds,  evidences  of  debt  and  papers  of  ev- 
ery kind,  of  the  testator  or  intestate,  were  in  the  hands  of  such 
deceased  executor  or  administrator  at  the  time  of  his  death, 
and  order  the  le^al  representatives  of  such  deceased  executor 
or  administrator  to  deliver  the  same  to  his  successor  or  the 
remaining  or  surviving  executor  or  administrator,  and  to  en- 
force such  order  by  attachment  against  the  person  or  property 
of  such  legal  representatives  of  the  deceased  executor  or  ad- 
ministrator/"^ This  remedy  is  in  addition  to  an  action  on  the 
bond.^«* 

Petition    by    Adiniiiistrafor,    Dc    Bonis   Xon,    for    Judgment 
Against  Securities  of  former  Admi)iistrator 

In  the  matter  of  the  estate  of  ( In    the    Probate    Court    of    

K.  K.,  deceased.  (     County. 

Your  petitioner,  J.  D.,  administrator  de  bonis  non  of  tlie  estate 
of  K.  R..  deceased,  respectfully  represents  to  tlie  court  that  James 

Fry,   late  administrator  of  said  estate,  died  on  the  day  of 

— [ ^  10_;    that  on  the day  of ,  19—,  your  petitioner 

was  appointed  administrator  of  said  estate  as  the  successor  of  James 
Fry.  deceased ;  that  II.  J.  and  B.  W.  are  the  securities  in  the  bond 
of  tlie  said  James  Fry.  deceased,  as  the  adnunistrator  of  said  estate; 
that  at  the  time  of  the  death  of  the  said  James  Fry  there  had  come 
into  his  hands  and  remained  unaccounted  for  in  his  representative 

capacity  the  sum  of  dollars,   belonirfng  to  the  estate  of  the 

said  R.  R.,  deceased. 

Your  petitioner  therefore  makes  application  to  this  court,  and 
aslis  that  the  court  ascertain  the  amount  of  money  belonging  to  the 
said  R.  R.,  deceased,  which  remained  in  the  hands  of  the  s^iid  James 
Fry,  deceased,  or  came  into  his  hands  and  remained  unaccounted  for. 
in  his  representative  capacity,  at  the  time  of  liis  death,  and  render 
judgment  against  said  H.  J.  and  B.  W.,  the  seciuities  aforesjiid  in 
the  bond  of  said  James  Fry,  deceased,  for  the  amount  so  ascertained 
and  for  costs.  J-  ^•' 

Administrator  de  Bonis  Non,  etc. 

This  form  is  intended  to  apply  to  a  case  arising  under  the 
fifty-seventh  section,  but  with  a  little  care  it  may  be  also  adapt- 
ed to  any  case  arising  under  the  fifty-eighth  section,  or  any 
other  statute  on  the  subject. 

1C3  Rev.  St.  1000,  §  58;  State  ex  rel.  Fountain  v.  Gray,  100  Mo. 
526,  17  S.  W.  500 ;    Fielder  v.  Rose.  61  Mo.  App.  ISO. 

io4\vickham  v.  Page,  49  Mo.  526;  State  ex  rel.  Crane  v.  Hein- 
richs,  82  Mo.  542;  State  ex  rel.  Johnson  v.  Withrow.  lOS  Mo.  1,  IS 
S.  W.  41 ;  Morehouse  v.  Ware,  "S  Mo.  100 ;  State  ex  rel.  Langston 
V.  Zorn,  13S  Mo.  App.  713,  119  S.  W,  517. 


164:  EXECUTORS   AND    ADMINISTKATOKS  §  169 

§  169,  Same — Notice  and  Judgment. — No  judgment  or 
order  can  be  rendered  against  any  of  the  parties  mentioned 
in  the  fifty-sixth,  fifty-seventh,  and  fifty-eighth  sections  of  the 
statute  above  mentioned,  until  they  are  served  with  notice,  in 
writing,  at  least  fifteen  days  before  the  sitting  of  the  court, 
of  the  time  and  place  of  the  sitting  thereof.  The  notice  must 
be  issued  and  signed  by  the  clerk  of  the  court,  if  there  be  one, 
and  if  not,  by  the  judge  thereof,  and  be  served  in  the  manner 
provided  by  law  for  the  service  of  process  in  civil  actions. ^*'' 

The  notice  may  be  in  the  following  form: 

State  of  Missouri,     | 

County  of  .  j 

The  State  of  Missouri  to  the  Sheriff  of  County,  Greeting: 

Whereas,  J.  D.,  administrator  de  honis  non  of  the  estate  of  R.  R., 
deceased,  has  made  complaint,  to  tlie  prol^ate  court  of  said  county, 
that  at  the  time  of  the  death  of  the  said  James  Fry,  late  adminis- 
trator of  said  estate,  he  had  in  liis  hands  as  such  administrator  a 
large  sum  of  money,  to-wit:  the  sum  of  dollars,  which  be- 
longed to  said  estate;  and  that  H.  J.  and  B.  W.  are  the  securities 
in  the  bond  of  said  .James  Fry,  deceased,  as  administrator  of  said 
estate,  and  asking  the  court  to  ascertain  tlie  amount  of  money  be- 
longing to  the  estate  of  said  R.  R.,  deceased,  which  remained  in  the 
hands  of  said  James  Fry,  or  came  into  his  hands  and  remained  un- 
accounted for  in  his  representative  capacity  at  the  time  of  his  death, 
and  render  judgment  against  the  said  H.  J.  and  B.  W.,  the  securities 
in  the  bond  of  said  James  Fry,  deceased,  for  the  amount  so  ascer- 
tained. 

You  are  tlierefore  hereby  commanded  that  you  give  notice  to  the 
said  H.  J.  and  B.  W.,  that  they  be  and  appear  before  the  probate 

court  of  county,  at  a  term  thereof,  to  be  held  at  the  court 

house  (or  usual  place  of  holding  courts),  in ,  on  the day 

of ,  19 — ,  tlien  and  there  to  answer  in  the  premises ;  and  fur- 
ther, to  do  and  perform  what  shall  then  by  said  court  be  required 
and  adjudged. 

And  hereof  make  due  service  and  return  as  the  law  directs. 

Witness,    J.   R.,   clerk  of  said   probate   court,   for   the   county   of 

,   and  the  seal  of  said  court  hereunto  annexed,  at  office,  in 

.  this day  of ,  19—.  J.  R., 

[L.  S.]  (Style  of  office.) 

This  notice  may  be  adapted  to  any  case  arising  under  the 
foregoing  provisions  of  the  statute.  If  the  parties  are  not 
all  properly  served  with  process,  the  court  may  proceed  against 

165  Rev.  St.  1909,  §§  59,  60;  Wickham  v.  Page,  -19  Mo.  526;  Brown 
V.  Weatherby,  71  Mo.  152;  Scott  v.  Crews,  72  Mo.  201;  Lewis  v. 
Carson,  16  Mo.  App.  M2 ;  State  ex  rel.  Johnson  v.  Withrow,  lOS  Mo. 
1,  18  S.  W.  41;  Citizens'  State  Bank  v.  Berry,  79  Mo.  App.  472; 
State  ex  rel.  Langston  v.  Canterbury,  124  Mo.  App.  241,  101  S.  W. 
G78. 


§  169  EXECUTORS   AND   ADMINISTRATORS  1G5 

those  who  are  served  and  dismiss  as  to  those  who  are  not 
served,  or  continue  the  proceedings  until  the  next  term  of  the 
court,  and  issue  new  notices  against  those  not  served,  at  its 
discretion.^*"'" 

The  entry  of  the  judgment  in  this  proceeding  may  be  as 
follows : 

In  the  matter  of  the  estate  of     ] 

R.  K.,  deceased.  | 

Now  comes  J.  D.,  administrator  de  bonis  non  of  the  estate  of  R. 
R.,  deceased ;  and  come  also  J.  H.  and  B.  W.,  the  s<'curities  in  the 
bond  of  James  Fry,  deceased,  late  the  administrator  of  said  estate; 
and  the  court  having  heard  the  evidence  adduced  and  fully  investi- 
gated the  account  of  the  said  James  Fry,  with  said  estate,  doth  find 
that,  at  the  death  of  said  James  Fry  there  remained  in  his  hands  the 

sum  of  dollars  in  money,  which  belonged  to  the  estate  of  R. 

R.  deceased.  It  is  therefore  adjudged  by  the  court  that  said  J.  D., 
as  such  adnunistrator,  shall  have  and  recover  of  and  from  the  said 
J.  H.  and  B.  W.,  securities  as  aforesaid,  in  the  bond  of  said  James 

Fry,  deceased,  the  said  sum  of  dollars,  so  found  as  aforesaid 

to  be  in  the  hands  of  said  James  Fry,  deceased,  in  his  representii- 
tive  capacity,  at  the  time  of  his  death,  together  with  costs  of  this 
proceeding,  taxed  at dollars  and cents.  And  that  ex- 
ecution issue  therefor. 

It  has  been  held  that  settlement  between  a  removed  or 
former  administrator  and  his  successor  is  not  a  final  settle- 
ment of  the  former's  account,  and  does  not  have  the  force  of 
a  judgment.  And  the  burden  is  on  such  administrator  to 
show  a  full  accounting.^"''  But  where  an  administrator  de 
bonis  non  was  a  party  to  a  settlement  made  by  the  adminis- 
trator of  a  deceased  administrator  of  said  estate,  it  was  said 
that  such  administrator  de  bonis  non  represented  the  cred- 
itors and  others  interested  in  the  estate,  and  that  such  settle- 
ment should  be  regarded  as  a  final  settlement  and  conclusive 
as  to  all  matters  included  in  it  or  necessarily  involved  in 
such  a  settlement. ^•'^ 


166  Rev.  St.  3009,  §  61;  State  ex  rel.  Johnson  v.  Withrow.  lOS  Mo. 
1,  18  S.  W.  41. 

ic-  Emmons  v.  Gordon.  125  Mo.  636,  28  S.  W.  863;  In  re  Estate 
of  Glover.  127  Mo.  153.  29  S.  W.  9S2 ;  State,  to  Use  of  Piles,  v.  Rich- 
ardson, 29  Mo.  App.  595 ;  Emmons  v.  Gordon,  140  Mo.  490,  41  S.  W. 
998.  62  Am.  St.  Rep.  734;  State  ex  rel.  Jacobs  v.  Elliott,  157  Mo. 
609,  57  S.  W.  1087,  SO  Am.  St.  Rep.  643. 

168  state  ex  rel.  Fountain  v.  Gray,  106  Mo.  526,  17  S.  W.  500; 
Patterson  v.  Booth.  103  Mo.  402.  15  S.  W.  543;  State  ex  rel.  Crane 
V.  Ileinrichs.  82  Mo.  542  :  Ro  Bards  v.  Lamb,  89  Mo.  303,  1  S.  W. 
222  ;    Van  Bibber  v.  Julian,  81  Mo.  618. 


166  EXECUTORS   AND   ADMINISTRATORS  §  160 

The  administrator  de  bonis  non  is  entitled  to  all  the  assets 
belonging  to  the  estate  not  administered  whether  in  specie  or 
not.^*^"  He  may  sue  his  predecessor  upon  his  bond  for  fail- 
ing to  comply  with  an  order  of  distribution;  ^^^  or  to  account 
to  him  for  the  assets  in  his  hands ;  and  the  circuit  courts  have 
original  jurisdiction  in  such  action,^ ^^ 

169  state,  to  Use  of  Coste,  v.  Fulton.  35  Mo.  323;  State  ex  rel.  Col- 
lins V.  Dulle,  45  Mo.  269 ;  State,  to  Use  of  Burrough,  v.  Farmer,  54 
Mo.  439 ;  Seymour  v.  Seymour,  67  Mo.  303 :  Scott  v.  Crews,  72  Mo. 
261;  State  ex  rel.  Crane  v.  Heinrichs,  82  Mo.  542;  Booker  v.  Arm- 
strong, 93  Mo.  49,  4  S.  W.  727;  Brown  v.  Weatherby,  71  Mo.  152; 
Powell  V.  Hurt,  31  Mo.  App.  632. 

170  Morehouse  v.  Ware,  78  Mo.  100;    Scott  v.  Crews,  72  Mo.  261. 
17  1  State  ex  rel.   Johnson   v.  Withrow,   108  Mo.  1,   18   S.   W.  41; 

State  ex  rel.  Crane  v.  Heinrichs,  82  Mo.  542. 


§  170  executoe's  right  to  assets  167 


CHAPTER  XVI 

OF  THE  RIGHTS  OF  EXFCUTOUS  AND  ADMIXISTKATOKS 
IN  THE  PROPERTY  OF  DECEDENTS 

§  170.  Assets,  what  are. 

171.  When  tlie  estate  vests  in  the  personal  repre.sentative. 

172.  The  nature  of  the  interest  of  the  representative. 

173.  Same — When  it  becomes  bis  own  proi)erty. 

174.  Same — As  to  realty. 

175.  His  right  to  chattels  real. 

176.  His  right  to  chattels  personal — Division  of  chattels. 

177.  Same — Chattels  animate. 

178.  Same — As  to  vegetal)les,  trees. 

179.  Same — Growing  crops — Emblements. 

180.  Same — As  to  fruits,  etc. 

181.  Chattels  inanimate. 

182.  Same — Choses  in  action. 

183.  Same— Fixtures. 

184.  Same — As  to  tenants,  etc. 

185.  Same — As  between  tenant  and  landlord. 

186.  Same — Fixtures  as  trade  or  agriculture. 

187.  Removal  of  fixtures. 

188.  As  to  leases. 

189.  As  to  rents. 

190.  As  to  stocks. 

191.  As  to  annuities. 

192.  As  to  prt)perty  held  in  trust. 

193.  As  to  patents. 

194.  As  to  copyright. 

195.  As  to  policies  of  insurance. 

196.  As  to  apprentices. 

197.  As  to  partnership  effects. 

198.  As  to  goods   mortgaged. 

199.  As  to  separate  property  of  wife. 

200.  Same — By  statute. 

201.  Same — When  the  wife  survives. 

202.  Same — When  the  husband  survives. 

203.  Donatio  mortis  causa. 

§  170.  Assets — What  Are. — Assets  consist  of  all  those 
goods  and  chattels  which  were  of  the  deceased  in  right  of 
action  or  possession  as  his  own.  and  so  continued  to  the 
time  of  his  death,  and  which  after  his  death  go  to  the  ad- 
ministrator as  beloni^ini;'  to  him  in  trust,  by  virtue  of  his 
office,  for  those  interested  in  the  estate.^    So  that  when  the 

1  McPike  V.  McPlke,  111  Mo.  216,  20  S.  W.  V2:  r.lount  v.  Hamey, 
4.'!  Mo.  App.  644;   Roeger  v.  Langenberg.  42  Mo.    App.  7:   McMillan 


168  executor's  right  to  assets  §  171 

administrator  claims  a  fund  or  property  his  right  to  it  will 
be  measured  and  tested  by  the  same  rule  that  would  be  ap- 
plied to  the  decedent  were  he  alive  and  claiming  it." 

§  171.  When  the  Estate  Vests  in  the  Personal  Rep- 
resentative.— It  is  generally  understood  that  the  title  of  an 
executor  in  the  personalty  of  the  decedent  is  derived  ex- 
clusively from  the  will ;  that  it  vests  in  him  at  the  moment 
of  the  testator's  death,  and  can  only  be  divested  by  opera- 
tion of  law  or  some  act  or  omission  of  his  own.'*  The  law 
knows  no  interval  between  the  testator's  death  and  the 
vesting  of  the  right  of  property  in  his  personal  effects  in 
his  excutor ;  and  although  the  probate  of  the  will  and  grant 
of  letters  are,  under  our  law,  an  indispensable  prerequisite 
to  the  right  of  an  executor  to  administer,  yet  when  the 
will  is  proven  and  letters  granted,  his  right  is  regarded  as 
accruing  by  relation  from  the  time  of  the  testator's  death.* 
An  administrator  derives  his  title  by  appointment  from  the 
court. ^  Even  an  executor  who  derives  his  power  from  a 
will,  must  qualify  and  be  appointed  by  the  court  before 
he  is  entitled  to  deal  with  the  property.** 

The  common  law  doctrine,  which  regarded  the  personal 
representative  as  the  absolute  owner  of  the  personalty  be- 
longing to  the  deceased,  does  not  prevail  here,  and  his 
power  to  dispose  of  the  assets  is  limited  and  regulated  by 
law.'^  He  is  merely  the  agent  or  trustee  of  the  estate  clothed 
with  special  and  limited  powers  under  the  administration 
law.^  He  alone  has  the  right  to  the  possession  and  can 
sue  therefor,  unless  the  probate  court  shall  by  an  order  dis- 
pense with  an  administration  on  the  estate,  in  which  case 
the  widow  of  minor  heirs  may  recover  the  property.''    He  is 

V.  Wacker,  57  Mo.  App.  220;  McCracken  v.  McCaslin,  50  Mo.  App. 
85 ;  Grand  Lodge  A.  O.  U.  W.  v.  Dister,  77  Mo.  App.  608. 

■^  Tierman's  Ex'r  v.  Security  Building  &  Loan  Ass'n,  152  Mo.  135, 
58  S.  W.  1072 ;  Tye  v.  Tye,  88  Mo.  App.  3.30. 

3  Foole  V.  Tolleson,  1  McCord  (S.  C.)  199.  10  Am.  Dec.  663. 

4  1  Williams,  Ex'rs,  55G;  Lamb  v.  Helm,  .56  Mo.  420;  Staggv.  Green, 
47  Mo.  500;  McMillan  v.  Wacker.  57  Mo.  App.  220. 

5  Wilson  V.   Wilson,  54  Mo.  213. 

6  Borland  on  Wills,  §  82 ;  Stagg  v.  Linnenfelser,  59  Mo.  341. 

7  Stagg  V.  Linnenfelser,  59  Mo.  336 ;  Chandler  v.  Stevenson,  68  Mo. 
450. 

8  Cape  Girardeau  County,  to  Use  of  Road  &  Canal  Fund  v.  Harbi- 
son, 58  Mo.  90. 

y  In  re  I'url's  Estate.  147  Mo.  App.  10.5.  125  S.  W.  849;  Grand 
Lodge  A.  O.  U.  W.  v.  Dister,  77  Mo.  App.  608. 


§  171  executok's  right  to  assets  169 

not  the  representative  of  the  creditors, ^°  neither  will  his 
promise  bind  the  estate/^  and  he  cannot  revive  a  debt  bar- 
red by  the  statute  of  limitations/-  nor  mortgage  the  real 
estate  of  the  deceased/^  nor  use  as  assets  property  previ- 
ously conveyed  by  deceased  to  defraud  his  creditors,^*  nor 
dedicate  land  to  public  use  without  a  will  or  decree  of  court 
authorizing  it.^^  Nor  can  he  maintain  an  action  to  set  aside 
a  conveyance  made  by  the  deceased  in  fraud  of  creditors, 
although  the  estate  is  insolvent.^" 

After  the  death  of  the  intestate,  his  personal  property 
may  be  considered  in  abeyance  until  administration  is 
granted,  and  it  vests  in  the  administrator  by  relation  from 
the  death  of  the  decedent.^ ^  Thus  the  administrator  may 
sue  for  torts  or  trespasses  committed  against  the  property 
of  the  decedent  before  his  appointment  and  after  the  death 
of  the  deceased. ^^  But  this  rule  does  not  apply  to  injury 
to  goods  held  by  the  deceased  in  his  representative  ca- 
pacity, the  title  to  which,  on  his  death,  vests  in  others.^* 
The  relation  back  of  the  title  of  the  administrator  to  the 
death  of  the  deceased,  is  to  prevent  injustice  and  the  occur- 
rence of  injuries  where  there  could  otherwise  be  no  recov- 
ery, and  therefore  will  only  be  allowed  in  cases  where  the 
ends  of  justice  will  be  subserved,  and  never  where  it  would 
produce  the  opposite  result.^"  The  title  to  all  personal  ef- 
fects, though  in  different  and  distant  places,  generally  vests 
in  the  executor  the  possession,  as  it  is  a  rule  of  law  that  the 
title  of  personal  chattels  draws  to  it  the  possession,-^ 

10  Crawford's  Adm'r  v.  Lelir,  20  Kan.  512, 

11  Brown  v.  Evans,  15  Kan.  88. 

12  Hanson  v.  Towle,  19  Kan.  273;  Cape  Girardeau  County,  to  Use 
of  Road  &  Canal  Fund,  v.  Harbison,  58  Mo.  90. 

13  Black  V.  DresselTs  Heirs,  20  Kan.  153. 

14  Crawford's  Adm'r  v.  Lelir,  20  Kan.  512, 
isKainie  v.  Harty,  73  Mo.  316. 

16  Brown's  Adm'r  v.  Finley.  18  Mo.  375;  George  v.  'Williamson, 
26  Mo.  190,  72  Am.  Dec,  203 ;  Merry  v.  Fremon,  44  Mo.  518. 

i7Jewett  V.  Smith,  12  Mass.  .309;  Lawrence  v.  Wright,  23  Pick. 
(Mass.)  128;  Rockwell  v.  Saunders.  19  Barb.  (N.  Y.)  473;  Sher- 
wood's Adm'r  v.  Hill,  25  Mo.  .391 ;  Wilson  v.  Wilson,  54  Mo.  213. 

18  Foster  v.  Pollard.  12  M.  &  W.  (Eng.  Ex.)  22G;  Rockwell  v.  Saun- 
ders, 19  Barb.  (N.  Y.)  473. 

19  Elliott  V.  Kemp,  7  M.  &  W.  (Eng.  Ex.)  306. 

20  1  Retlfield  on  "Wills,  115;  1  'U'illiams,  Ex'rs.  557;  Lawrence  v, 
'Wright  23  Pick.  (Mass.)  128;  Wilson  v.  Wilson.  54  Mo.  213. 

211  Williams,  Ex'rs,  560;  In  re  Purl's  Estate,  147  Mo.  App.  105, 
125  S.  W.  849. 


1~0  executor's  eight  to  assets  §  172 

§  172.     The  Nature  of  the  Interest  of  the  Representative. 

— The  executor  or  administrator  represents  the  decedent  in 
respect  to  his  personal  estate,  and  has  the  same  property 
in  it  that  the  deceased  had  at  the  time  of  his  deaths  and  may 
recover  it  by  action.  Yet,  his  interest  in  the  property  of 
the  deceased  is  very  different  from  that  of  an  absokite 
owner  in  his  own  proper  goods;  it  is  only  temporary  and 
qualified.  He  holds  the  eft'ects,  in  autre  droit,  as  the  min- 
ister or  dispenser  of  the  goods  of  the  dead,  as  trustee  for 
the  creditors  and  distributees,  and  not  for  his  own  benefit. ^^ 

He  will  not  be  allowed  to  retain  any  personal  advantage 
from  the  use  of  the  estate. ^^  If  he  uses  the  funds  of  the  es- 
tate in  his  own  business  and  loss  results,  he  must  make  it 
good  to  the  estate,  and  if  profits  are  made  he  must  account 
for  them. 2*  If  he  buys  or  settles  a  claim  against  the  estate 
for  less  than  its  face,  he  can  receive  a  credit  only  for  the 
amount  paid  out."  If  he  owes  the  estate,  such  indebted- 
ness is  an  asset  in  his  hands.-'' 

The  effects  of  the  decedent  in  the  hands  of  the  representa- 
tive cannot  be  seized  on  execution  against  him  in  his  own 
right;  nor  be  made  liable  for  his  dcbtp  bv  attachment  or 
garnishment;  ^^  nor  are  they  liable  for  his  debts  in  case  of 
his  death,  in  the  hands  of  his  executor;  nor  can  he  dispose 
of  them  by  will.  In  fine  he  cannot  transmit  any  interest 
in  the  property  of  his  decedent  to  his  own  personal  rep- 
resentatives 

2  2  Prewitt  V.  Martin,  59  Mo.  325;  State  ex  rel.  Towushend  v. 
Meagher,  44  Mo.  .'ioe,  100  Am.  Dee.  298;  Collamore  v.  Wilder,  19  Kan. 
C7;  Cape  Girardeau  County,  to  Use  of  Road  &  Canal  Fund,  v.  Har- 
bison, 58  Mo.  90 ;  State,  to  Use  of  Wolff,  v.  Berning,  74  Mo.  87 ;  Wolff 
V.  Schaeffer,  74  Mo.  154;  Tiemann  v.  Molliter,  71  Mo.  512;  Lessing 
V.  Vertrees,  32  Mo.  431;  1  Williams,  Ex'rs,  562;  Tierman's  Ex'r  v.  Se- 
curity Building  &  Loan  Ass'n,  152  Mo.  1.35,  53  S.  W.  1072 ;  McCraclcen 
V.  McCaslin.  .50  Mo.  App.  85;  Orchard  v.  Wright-Dalton-Bell-Anchor 
Store  Co..  225  Mo.  414,  125  S.  W.  486,  20  Ann.  Cas.  1072 ;  Crohn  v. 
Clay  County  State  Bank,  137  Mo.  App.  712,  118  S.  W.  498 ;  Seilert 
V.  MeAnally,  223  Mo.  505,  122  S.  W.  1064,  135  Am.  St.  Rep.  522. 

2  3  Gamble  v.  Gibson,  59  Mo.  585;  Stitt  v.  Stitt,  205  Mo.  155,  103 
S.  W.  547. 

2  4  Merritt's  Estate  v.  Merritt,  62  Mo.  150;  Cape  Girardeau  County, 
to  Use  of  Road  &  Canal  Fund,  v.  Harbison,  58  Mo.  90. 

2  5  Hull  V.  Voorhis,  45  Mo.  5.'>5. 

26  Young  V.  Thrasher,  48  Mo.  App.  .327;  State  ex  rel.  Jones  v. 
Jones,  53  Mo.  App.  207;  Wilson  v.  Ituthrauff,  82  Mo.  App.  435. 

2  7  Le.ssing  v.  Vertrees,  32  Mo.  431. 


§  173  executor's  eight  to  assets  171 

§  173.  Same — When  It  Becomes  His  Own. — As  a  gen- 
eral rule,  at  coniinon  law,  the  husband  is  entitled  by  mar- 
riage to  all  the  personal  property  of  the  wife,  possessed  by 
her  at  the  time  of  the  marriage,  or  afterward,  in  her  own 
right,  yet  the  marriage  gives  him  no  interest  in  property 
held  by  her  in  autre  droit,  as  executrix  or  administratrix; 
nor  has  he  any  right  to  intermeddle  with  the  same  in  any 
manner  by  virtue  of  the  marriage.  In  such  case  her  mar- 
riage extinguishes  her  powers  and  revokes  her  letters.-'*  If 
the  executor  or  administrator  sell  or  pledge  the  assets  as 
security  for  or  in  payment  of  his  individual  debt,  such 
transaction  would  be  voidable  and  might  be  annulled  by 
those  interested  in  the  estate.-"  And  if  he  should  charge 
himself  with  a  fund  which  does  not  belong  to  the  estate, 
he  may  correct  the  charge  in  his  final  settlement.-^"  There 
are  perhaps  ways  and  means  by  which  the  property  of  the 
decedent  held  by  the  executor  or  administrator,  may  be- 
come his  own,  as  other  goods,  to  his  own  use.  For  in- 
stance, it  is  claimed  by  text  writers,  that  money  left  by  the 
decedent,  or  coming  into  the  hands  of  the  representative, 
and  being  intermixed  with  his  own  money,  is  incapable  of 
being  distinguished  from  it,  and  the  property  in  the  specific 
coin  must  of  necessity  be  altered."^  So,  if  he  accounts  in 
his  final  settlement  for  a  claim  as  so  much  money,  it  be- 
longs to  him  by  operation  of  law.^-  But  as  long  as  the 
money  can  be  traced  or  identified,  the  representative  will 
have  no  other  or  different  interest  in  it  than  he  has  in  other 
effects  of  decedent.  And  where  the  executor  is  a  legatee, 
by  assenting  to  his  own  legacy,  the  thing  bequeathed  vests 
in  him.  So,  if  he  is  residuary  legatee  and  gives  bond  for 
payment  of  the  debts  and  legacies,  and  an  administrator 
who  is  entitled  to  a  share  as  distributee  in  the  estate,  may 
acquire  a  legal  title  in  his  own  right,  to  goods  of  the  de- 
ceased, either  by  taking  them  by  agreement  with  the  other 
distributees,  or  by  appropriating  them  to  himself  as  his 
own  share.^^     And  if  he  buys  the  interest  of  a  distributee 

2  8  Rev.  St.  1!X)0.  §  4!);  Carr  v.  Spannagel,  4  Mo.  App.  liS4;  Viel- 
haber  v.  Eyeriiiaiiii,  1  Mo.  App.  115. 

2  9  Boe.uor  v.  Lansonbcrg.  4:.'  Mo.  App.  7. 
soMcPike  v.  MePike.  Ill  Mo.  210,  20  S.  W.  12. 
31  1  Williams,  Ex'rs.  572. 

3  2  Smith  V.  Gre>,'ory.  75  Mo.  121. 
33  1  "WiUiams,  Ex'rs,  574. 


172  executor's  right  to  assets  §  174 

he  would  be  entitled  to  credit  for  it  in  a  suit  on  his  bond 
by  a  successor.^* 

§  174.  Same — As  to  Realty. — The  personal  representa- 
tive, as  a  general  thing,  has  no  control  over  the  real  estate 
of  the  deceased,  and  while  he  has  a  right  to  rents  accruing 
before  the  death  of  the  decedent,  he  is  not  entitled  to  and 
cannot  maintain  a  suit  for  rent  accruing  or  a  trespass  com- 
mitted, after  the  death  of  the  decedent,  because  the  lands 
descend  to  the  heirs  or  devisees,  and  they,  as  owners,  have 
a  right  to  the  rents,  and  are  the  proper  parties  to  sue  for 
an  injury  to  the  freehold.^^  But  where  the  personal  es- 
tate is  insufficient  to  pay  the  debts  and  legacies,  the  court 
may  authorize  the  executor  or  administrator  to  rent  the 
realty  for  a  term  not  exceeding  two  years.^^  And  if,  without 
such  order  he  should  receive  the  rents  under  color  of  his 
office  as  administrator,  he  will  be  required  to  account  for 
them.^^  And  upon  a  proper  showing  the  court  may  order 
a  sale  of  the  real  estate  to  meet  the  liabilities  of  the  estate. 
Whenever  letters  of  administration  or  testamentary  shall 
have  been  granted  on  an  estate,  and  it  shall  appear  to  the 
court,  or  judge  in  vacation,  that  the  decedent  died  possessed 
of  real  estate  in  the  state,  and  his  heirs,  or  legatees  have 
failed  to  take  charge  of  same,  or  the  identity  or  whereabouts 
of  such  heirs  or  legatees  are  unknown,  then  the  court  or 
judge  in  vacation  may  on  its  or  his  own  motion,  or  that  of 
any  party  interested,  direct  the  administrator  or  executor 
in  charge  of  said  estate  to  take  charge  and  manage  the  real 
estate,  until  such  time  as  such  heirs  and  legatees  shall  ap- 
pear and  petition  the  court  to  turn  the  management  of  said 

3  4  Scott  V.  Crews,   72  Mo.  261. 

35Aubuchon  v.  Lory,  23  Mo.  99;  Sturgeon  v.  Schaumburg,  40  Mo. 
4S2;  Gaml)Ie  v.  Gibson,  59  Mo.  585;  Bealey  v.  Blake's  Aduj'r,  70  Mo. 
App.  229;  Landree  v.  Warren,  53  Mo.  App.  442;  Hall  v.  Farmers'  & 
Merchants'  Bank,  145  Mo.  418,  46  S.  W.  1000;  Grant  v.  Hathaway, 
215  Mo.  141,  114  S.  W.  609,  15  Ann.  Cas.  567;  McQuitty  v.  Wilhite, 
218  Mo.  586,  117  S.  W.  730,  131  Am.  St.  Rep.  561 ;  Smith  v.  Black, 
231  Mo.  681,  132  S.  W.  1129. 

36  Rev.  St.  1909,  §  139;  Lass  v.  Kisleben,  50  Mo.  122;  Grant  v. 
Hathaway,  215  Mo.  141,  114  S.  W.  609,  15  Ann.  Cas.  567;  Hall  v. 
Farmers'  &  Merchants'  Bank,  145  Mo.  418,  46  S.  W.  1000;  Meeks 
V.  Clear  Jack  Miu.  Co.,  141  Mo.  App.  648,  124  S.  W.  1084;  McQuitty 
V.  Wilhite,  218  Mo.  586,  117  S.  W.  730,  131  Am.  St.  Rep.  501. 

3  7  Mel'ike  v.  McPike,  111  Mo.  216,  20  S.  W.  12;  St.  Louis  Nat. 
Bank  V.  Field,  156  Mo.  306.  .56  S.  W.  1095. 


§  174  executor's  right  to  assets  173 

real  estate  over  to  them,  or  until  the  same  shall  escheat  to 
the  state  as  is  provided  by  the  ''escheat  act."^*' 

An  executor  may  dispose  of  real  estate  for  the  payment 
of  debts  or  legacies,  or  for  any  other  purpose  specified, 
when  the  power  so  to  do  is  expressly  conferred  by  the 
will.^''  But  this  power  is  personal  and  cannot,  without  the 
aid  of  the  statute,'"  such  as  there  is  in  this  state,  be  ex- 
ercised by  an  administrator  cum  testamento  annexe."  To 
enable  an  executor  to  sell  real  estate,  the  power  must  be 
expressly  given  or  necessarily  implied,  as  where  a  sale  is 
directed,  in  general  terms,  without  naming  by  whom  it  shall 
be  made,  and  the  avails  are  to  go  in  payment  of  the  debts 
or  legacies."  A  testator  may  by  his  will,  direct  an  ab- 
solute conversion  of  his  real  estate,  or  any  part  of  it,  into 
money  for  general  purposes,  and  in  such  case,  the  avails  of 
the  land  become  personal  estate,  to  all  intents,  the  same  as 
if  it  had  never  been  land.  It  seems  that  a  mortgagee's  ti- 
tle to  real  estate  vests,  on  his  decease,  in  his  executor  or 
administrator,  as  an  incident  to  the  indebtedness  secured 
by  the  mortgage,  which  goes  to  the  representative."  And 
when  the  debt  is  satisfied  the  executor  or  administrator 
must  release  the  mortgage.  It  has  been  said  that  a  devise 
of  land  to  executors  to  sell,  passes  the  interest  in  it,  but  a 
devise  that  executors  shall  sell  the  land,  or  that  land  shall 
be  sold  by  executors  gives  but  a  power.  But  the  true  rule 
would  seem  to  be  in  this  country,  that  a  devise  of  land  to 
be  sold  by  the  executors,  without  giving  the  estate  to  them 
will  invest  them  with  a  power  only,  and  not  give  them  an 
interest.^''  It  may  be  proper  to  remark  here,  that  if  land 
be  sold  for  a  specific  purpose,  under  a  mortgage  or  by  an 
order  of  court,  as  for  the  payment  of  debts  and  legacies, 
any  surplus  money  arising  from  the  sale  will  be,  as  between 
the  heirs  and  distributees,  considered  as  land,  and,  they 
will  be  entitled  to  it  the  same  as  if  it  had  remained  uncon- 
verted."    But  after  it  has  thus  vested  in  them,  it  will  be 

3  8  Section  139a.  Rev.  St.  1909,  as  added  by  Laws  1911,  p.  SO. 
39McQuitty  V.  Wilhite.  218  Mo.  586,  117  S.  W.   730,  131  Am.  St. 

Rep.  561 ;  Smith  v.  Black,  231  Mo.  681,  132  S.  W.  1129. 

4  0  Rev.  St.  1909,  §  141. 

412  Kedfield  on  Wills,   121;  Phillips  v.  Stewart,  59  Mo.  491. 

4  2  Redfield  on  Wills,  142. 

4  3  Taft  V.  Stevens,  3  Gray  (Mass.)  504. 

4  4  Foote  V.  Sanders,  72  Mo.  616. 

4  5  In  re  Lloyd's  Estate,  44  Mo.  App.  670. 


174  executor's  right  to  assets  §  175 

treated  as  money  in  their  hands,  and  will  go  to  their  per- 
sonal representatives  as  personal  estate  in  the  event  of  their 
decease. 

§  175.  Their  Right  to  Chattels  Real. — The  general  rule 
is  that  chattels  real  go  to  the  executor  or  administrator  and 
not  to  the  heirs. ■'^^  Chattels  real  are  interests  issuing  out 
of  or  annexed  to  the  realty  and  include  estates  for  years, 
at  will,  by  sufferance,  and  various  interests  of  uncertain 
duration.*^  Leases  for  a  definite  period,  however  long,  are 
classed  as  personal  property  and  go  to  the  administrator 
or  executor.*®  This  is  true,  notwithstanding  the  statute 
which  provides  that  dower  shall  be  assigned  in  leases  for 
a  term  of  twenty  years,  or  more,  as  in  real  estate.*"  As 
w'ill  be  hereafter  noted,  leasehold  estates  for  an  unexpired 
term  of  three  years  or  more  are  not  subject  to  sale  as  per- 
sonal property,  but  such  sales  are  controlled  and  governed 
by  the  statutory  provisions  relating  to  the  sale  of  real  es- 
tate.^" All  estates  for  life,  or  for  an  uncertain  period  which 
may  endure  for  life — as  during  widowhood,  or  so  long  as 
one  shall  remain  unmarried,  or  during  coverture,  or  as  long 
as  the  grantee  shall  dwell  in  a  particular  place — are  re- 
garded as  freehold  estates  and  go  to  the  heirs. -'^  And  when 
the  words  used  in  the  disposition  of  personal  property 
would,  if  applied  to  real  property,  give  an  estate  tail,  they 
pass  an  absolute  interest  in  the  personalty.^-  A  devise  of 
the  wife's  chattels  real  will  not  divest  her  interest  if  she 
survives  the  husband,  but,  if,  after  being  ejected,  the  hus- 
band bring  an  action  in  his  own  name  and  recover,  this 
will  divest  the  interest  of  the  wife,  except  as  to  separate 
estate. 


46  Orchard  v.  Wright-Dalton-Bell-Anchor  Store  Co.,  225  Mo.  414, 
125  S.  W.  486,  20  Ann.  Cas.  1072;  1  Woerner's  American  Law  of 
Administration,  590. 

4  7  liapalje  &  Lawrence,  Law  Diet.  p.  200. 

48  Sutter  V.  Lackmann,  ?,9  Mo.  97;  Scliee  v.  Wiseman,  79  Ind.  392; 
Orcliard  v.  Wright-Dalton-Bell-Anclior  Store  Co.,  225  Mo.  414,  125 
S.  W.  486,  20  Ann.  Cas.  1072. 

49  Rev.  St.  1909,  §  345;  Orcliard  v.  Wriglit-Dalton-Bell-Anchor 
Store  Co.,  225  Mo.  414,  125  S.  W.  480.  20  Ann.  Cas.  1072. 

GO  Orchard  v.   Wrij,'ht-Dalton-Bell-Auchor   Store  Co.,  225  Mo.  414, 
125  S.  W.  486,  20  Ann.  Cas.  1072. 
51  2  Blacli.  Com.  386. 

5  2  Halbert  v.  Ilalbert,  21  Mo.  277. 


§177  executor's  right  to  assets  !"«"» 

§  176.  Their  Right  to  Chattels— Division  of  Chattels.— 
Chattels  personal  are,  properly  and  strictly  speakinj^,  lhinj.(s 
movable ;  which  may  be  annexed  to  or  attendant  on  the 
person  of  the  owner,  and  carried  about  with  him  from  one 
part  of  the  world  to  another.  Such  are  animals,  household 
stulTf,  money,  jewels,  coin,  garments,  and  everything  else 
that  can  be  properly  put  in  motion,  and  transferred  from 
jjlace  to  place."  Improvements  upon  leasehold  property 
which  the  lessee  or  tenant  has  a  right  to  remove  at  the  end 
of  the  term  are  chattels;  ^^  and  crops  raised  by  yearly  labor 
and  cultivation  are  chattels.'' '•  All  these  and  other  things 
of  the  same  nature  generally  speaking,  belong  to  the  ex- 
ecutor or  administrator.'^"  This  subject  is  usually  divided 
into  chattels  animate,  chattels  vegetable  and  chattels  in- 
animate. 

§  177,  Same — Chattels  Animate  are  such  as  are  domes- 
tic, and  such  as  are  ferae  naturae — tame  and  wild  animals. 
In  such  as  are  of  a  tame  and  domestic  nature,  as  horses, 
cattle,  sheep,  hogs  and  poultry,  and  the  like,  a  man  have 
an  absolute  property.  They  are  therefore  capable  of  being 
transmitted,  like  any  other  property,  to  the  executor  or  ad- 
ministrator; and  the  increase  of  the  female  belongs  to  the 
owner  of  the  dam.''"  In  those  of  a  wild  nature,  such  as  are 
usually  found  at  liberty  and  wandering  at  large,  generally 
speaking,  a  man  can  have  no  such  property  as  will  go  to 
his  representatives.  But  if  a  man  reclaim  this  class  of  an- 
imals, and  tame  them  by  art,  industry  or  education ;  or, 
if  he  confine  them  within  his  own  immediate  control  so 
that  they  cannot  escape  and  use  their  natural  liberty,  he 
thereby  acquires  a  qualified  property  in  them,  and  they  will, 
in  such  case,  pass  to  his  representatives,  as  other  animals. 
If,  however,  they  at  any  time  regain  their  liberty,  the  con- 
trol being  gone,  the  property  in  them  ceases,  unless  they 
are  such  kind  as  ha1>itually  return.''^'*  In  this  country,  dogs. 
however  useful,  are  not  regarded  as  personal  estate  in  the 

53  2  Black.  Com.  387,  388. 

5*  Dryden  v.  Kellogg,  2  Mo.  .\pp.  ST;  Tiulor  Iron  Works  v.  Ilitt, 
4J)  Mo.  App.  472. 

nr.  Baker  v.  Mclnturff,  4i)  Mo.  App.  oOo;  Gartli  v.  Caldwell,  72 
Mo.  622. 

56  1  Williams,  Ex'rs.  (!24 ;  Blount  v.  Ilanioy,  43  Mo.  App.  044. 

BT  Eduionston  v.  Wilson.  49  Mo.  App.  401. 

6S1  Williams,  Ex'rs,  025. 


176  executor's  right  to  assets  §  178 

hands  of  the  representative ;  we  have  never  known  one  to 
be  inventoried.  But  in  England,  where  people  take  great 
delight  in  the  cry  of  the  hound,  as  exhilarating  music,  a 
value  is  attached  to  him  as  an  article  of  amusement  and 
profit,  and  he  goes  to  the  representative.  Again,  in  that 
country,  deer  in  a  park,  conies  in  a  warren,  and  doves  in  a 
dove  house,  fish  in  a  pond,  etc.,  are  regarded  as  a  part  of 
the  inheritance,  and  go  to  the  heir.^® 

§  178.  Same — As  to  Vegetables — Trees. — Personal  ef- 
fects of  a  vegetable  kind  are  the  fruit  or  other  parts  of  a 
plant  or  tree,  when  severed  from  the  body  of  it;  or  the 
plant  or  tree  itself  when  severed  from  the  ground.  Trees 
not  severed  from  the  ground  in  general,  go  with  the  land 
to  the  heir.  So  apples,  pears,  peaches  and  other  fruit,  grow- 
ing or  hanging  on  the  trees  at  the  time  of  the  decedent's 
death,  go  to  the  heirs,  unless  the  family  of  the  decedent 
take  such  fruit,  by  reason  of  their  right  to  remain  in  the 
homestead  during  the  settlement  of  the  estate;  at  all  events 
it  does  not  go  to  the  representative. 

But  there  are  cases  where  timber  and  trees  not  severed 
from  the  land  may  be  treated  as  assets  and  pass  to  the 
representative.  Thus,  if  one  buys  trees  from  the  owner  of 
the  soil,  they  are,  in  contemplation  of  law,  divided  as  chat- 
tels from  the  freehold,  and  should  the  purchaser  die  be- 
fore cutting  them,  they  pass  to  the  representative  as  part 
of  the  personalty.  So  if  the  owner  sells  the  land  and  re- 
serves the  trees,  they  will  be  regarded  as  personal  prop- 
erty, and  his  representative  will  have  the  right  to  cut  and 
remove  the  trees,  and  treat  them  as  assets.  Trees  cut  for 
fuel  for  the  use  of  the  owner  of  the  land  will  go  to  the  fam- 
ily, as  other  articles  provided  for  their  consumption.  But 
fire  wood  cut  for  sale,  or  other  wood,  as  rails,  saw-logs, 
hoop-poles,  staves,  or  other  materials,  cut  for  the  purpose 
of  merchandise,  are  assets  and  go  to  the  representative. 

§  179.  Same — Growing  Crops — Emblements. — There  are 
however,  certain  vegetable  products  of  the  earth  which,  al- 
though they  are  annexed  to  and  growing  upon  the  land  at 
the  time  of  the  occupant's  death,  yet  as  between  his  execu- 
tor or  administrator  and  the  heir,  are  considered  by  law  as 
chattels  and  will  pass  as  such.     These  are  usually  called 

59  1  Williams,  Ex'rs,  625. 


§  180  executor's  right  to  assets  177 

emblements.  The  vegetable  chattels  so  named  are  the 
grain  and  other  products  of  the  earth  which  are  produced 
annually — not  spontaneously,  but  by  labor  and  industry. 
\\  hen  the  occupant  of  the  land,  whether  he  be  the  owner 
of  the  inheritance  or  of  an  estate  terminating  with  his  own 
life,  has  sown  or  planted  the  soil  with  the  design  of  rais- 
ing a  crop  of  such  a  nature,  and  dies  before  harvest  time, 
the  law  gives  to  his  representative  the  profits  of  the  crop, 
to  compensate  for  the  expense  of  tilling,  manuring  and 
sowing  the  land,**"  even  though  the  land  be  devised.*^ ^  Em- 
blements included  not  only  corn  and  grain  of  all  kinds,  but 
everything  of  an  artificial  and  annual  profit  that  is  produced 
by  lal)or  and  manurance;  as  hemp,  Hax,  potatoes,  and  mel- 
ons of  all  kinds,  and  hops  also,  although  they  spring  from 
old  roots,  because  they  are  annually  manured  and  require 
cultivation. 

§  180.  Same — As  to  Fruits,  etc. — But  the  rule  does  not 
apply  to  the  fruit  growing  on  trees,  nor  to  planted  trees ; 
for  the  general  rule  is,  whatsoever  is  affixed  to  the  soil 
passes  with  the  soil ;  and  when  a  man  plants  a  tree  it  is 
not  for  the  present  profit,  but  for  the  hope  of  its  future 
use  to  himself  and  to  future  successions  of  tenants.  There- 
fore, if  a  man  sow  his  land  with  acorns  or  plant  young  fruit 
trees,  or  oak,  elm,  ash,  or  other  trees,  these  cannot  be 
treated  as  emblements.  Trees,  shrubs,  and  other  growth 
planted  by  gardeners  and  nurserymen,  with  an  express 
view  to  their  sale,  are  an  exception,  for  they  are  removable, 
as  emblements  are,  by  the  representative.  If  one  not  be- 
ing a  nurseryman  by  trade,  plants  a  nursery  of  fruit  or  other 
trees,  for  the  purpose  of  transplanting  on  the  same  land, 
they  pass,  on  his  death,  to  the  heir  or  devisee.  The  grow- 
ing crop  of  grass,  even  if  sown  from  seed,  and  ready  to  be 
cut  for  hay,  cannot  be  taken  as  emblements;  but  it  is  said 
that  artificial  grasses,  such  as  clover  or  Hungarian  grass, 
and  the  like,  by  reason  of  the  greater  care  and  labor  neces- 
sary for  their  production,  are  within  the  rule  of  emblements. 
And  as  we  have  seen,  all  annual  crops  raised  by  labor,  such 
as  wheat,  corn,  oats,  rye,  buckwheat,  etc.,  whether  grow- 
ing or  severed  from  the  land  or  not,  at  the  time  of  the  de- 

60  Whaley  v.  Wlialey,  51  Mo.  ?,C>:  Raker  v.  Mcluturff,  -49  Mo.  App. 
505;  Garth  v.  Caldwell  72  Mo.  G22. 

61  Humphrey  v.  Merritt,  51  Ind.  197. 

KEL.MO.P.G.— 12 


178  executor's  right  to  assets  §  181 

cedent's  death  will  belong  to  the  personal  representative. "- 
If  a  man  sow  lands  of  his  wife  not  her  separate  estate,  and 
die  before  the  crop  is  severed,  his  executor  or  administrator 
is  entitled  to  it  as  emblements.  But  if  the  crop  was  sown 
before  the  marriage  or  upon  her  separate  estate,  the  wife 
will  hold  it.  And  if  husband  and  wife  are  joint  tenants, 
and  the  husband  sow,  and  die  before  the  crop  is  severed, 
the  emblements  go  with  the  land,  to  the  wife.  Upon  the 
death  of  a  tenant,  by  the  curtesy,  like  any  other  tenant  for 
life,  the  emblements  of  the  estate  held  by  the  curtesy  will 
go  to  his  representative.  So  in  the  case  of  the  death  of  a 
tenant  at  will,  his  representative  is  entitled  to  emblements. 
Where  there  is  a  right  to  emblements,  the  law  gives  a  free 
entry,  egress  and  regress,  as  much  as  is  necessary,  in  order 
to  cut  and  carry  them  away. 

§  181.  Chattels  Inanimate — Such  as  are  Evident. — Per- 
sonal chattels  inanimate  are  said  to  be  evidently  these,  viz: 
all  household  stuff,  implements,  money,  plate,  jewels,  corn, 
grain,  hay,  wood  felled  and  severed  from  the  ground,  wares, 
merchandise,  carts,  coaches,  saddles  and  such  like  movable 
things.  All  these  pass  to  the  personal  representative ;  and 
although  any  one  of  them  should  be  specifically  bequeathed 
to  a  legatee,  it  will  not  vest  in  him  till  the  executor  has 
assented."^  The  subject  of  chattels  inanimate,  as  to  things 
not  so  evident  as  those  named,  will  require  a  more  extended 
notice  at  our  hands. 

§  182.  Same — Choses  in  Action. — The  personal  repre- 
sentative succeeds  to  all  the  rights  of  the  decedent  as  re- 
spects choses  in  action,  as  of  the  day  of  the  decease."*  A 
cause  of  action  arising  out  of  an  injury  to  the  person,  such 
as  assault  and  battery,  false  imprisonment,  slander,  libel, 
and  the  like,  dies  with  the  death  of  either  party,  except  in 
those  cases  where  the  common  law  has  been  changed  by 
statute.  All  other  causes  of  action  survive,  and  may  be 
brought  by  or  against  the  executor  or  administrator  of  the 
deceased,  except  actions  for  the  breach  of  marriage  con- 

C2  Whaley  v.  Whaley,  51  Mo.  36;  Humphrey  v.  Merritt,  51  Ind. 
197;  Baker  v.  Mclntiuff,  49  Mo.  App.  505;  Winn  v.  Riley,  151  Mo. 
61,  52  S.  W.  27,  74  Am.  St.  Rep.  517. 

63  1  Williams,  Ex"rs,  640. 

<■'■*  Ileidenhelmer  v.  Wilson,  31  Barb.  (N.  T.)  63G;  Beecher  v.  Buck- 
ingham, 18  Conn.  110,  44  Am.  Dec.  580. 


§  182  executor's  right  to  assets  179 

tract. "^  There  are  many  actions  in  the  form  of  tort  where 
the  surviving  of  the  cause  of  action  will  depend  upon  the 
act  of  the  negligence  from  which  it  arises  having  produced 
injury  to  the  estate  of  the  deceased,  as  where  the  default 
was  in  investigating  title  to  an  estate. 

The  rules  of  the  common  law  concerning  the  survival  of 
causes  of  action  for  personal  injury  suffered  by  the  de- 
ceased have  been  greatly  modified  by  statute  in  Missouri 
and  other  states.  Under  the  statutes  of  Missouri,  upon 
the  death  of  a  person  as  a  result  of  the  wrongful  act,  neg- 
lect, or  default  of  another,  where  the  act,  neglect,  or  de- 
fault is  such  as  would,  if  (kath  had  not  ensued,  have  enti- 
tled the  party  injured  lo  maintain  an  action  and  recover 
damages,  the  cause  of  action  so  arising  descends:  First, 
to  the  husband  or  wife  of  the  deceased;  or,  second,  if  there 
be  no  husband  or  wife,  or  he  or  she  fails  to  sue  within  six 
months  after  such  death,  then  to  minor  child  or  children  of 
the  deceased;  or,  third,  if  such  deceased  be  a  minor  and 
unmarried,  then  to  the  father  or  mother  who  join  in  the  suit, 
each  to  have  an  equal  interest  in  the  judgment;  or,  fourth, 
if  there  be  no  husband,  wife,  minor  child,  or  minor  chil- 
dren, natural  born,  or  adopted,  or  the  deceased  be  an  un- 
married minor  and  there  be  no  father  and  mother,  then 
in  such  case  suit  may  be  instituted  and  recovery  had  by 
the  administrator  or  executor  of  the  deceased,  and  the 
amount  recovered  shall  be  distributed  according  to  the 
laws  of  descent.^"  It  is  further  provided  by  statute  that 
where  suit  has  been  brought  for  personal  injuries,  other 
than  those  resulting  in  death,  whether  such  injuries  be  to 
the  health,  or  to  the  person,  the  cause  of  action  shall  not 
abate  by  reason  of  the  death  of  the  injured,  nor  by  reason 
of  the  death  of  the  person  against  whom  the  action  is 
brought;  but  such  cause  of  action  shall  survive  to  the 
personal  representative  of  the  plaintiff  and  against  the 
personal  representative  of  the  defendant — the  liability  and 
measure  of  damages  remaining  the  same  as  if  such  death  or 
deaths  had  not  occurred.''' 

65  Rev.  St.  1909,  §§  10.">,  lOG;  Beck  v.  Dowell.  40  Mo.  App.  71;  Stan- 
ley V.  Bircher,  78  Mo.  247 ;  Davis  v.  Morgan,  97  Mo.  70.  10  S.  W.  SSI ; 
Alexander  v.  Grand  Ave.  Ky.  Co.,  54  Mo.  App.  GO;  Gilkesou  v.  Mis- 
souri Pac.  Ry.  Co.,  222  Mo.  173,  121  S.  W.  138,  24  L.  R.  A.  (N.  S.) 
844,  17  Ann.  Cas.  763. 

66  Rev.  St.  1009,  §  5425,  as  anunded  by  Laws  1011,  p.  203;  Rev. 
St.  1009,  §§  105,  lOG. 

C7  Rev.  St.  1009,  §  5438. 


180  executor's  right  to  assets  §  182 

When  there  is  a  breach  of  covenant  for  title  running  with 
the  land  in  the  lifetime  of  the  decedent,  if  the  principal  in- 
jury be  to  the  inheritance,  the  action  will  belong  to  the 
heir  and  not  to  the  representative.  But  when  the  ultimate 
damage  is  sustained  in  the  lifetime  of  the  decedent,  as 
where  he  is  turned  out  of  possession  of  the  land,  and  the 
land  and  consequently  the  covenant  in  the  deed  does  not 
descend  to  the  heir,  the  personal  representative  only  can 
sue  on  the  covenant.  And,  in  general,  when,  by  a  breach 
of  covenant  relating  to  land  occurring  in  the  life  of  the 
decedent,  the  personal  estate  is  lessened,  the  representa- 
tive, and  not  the  heir  is  the  proper  person  to  sue.  The  per- 
sonal representative  may  maintain  an  action  for  trespass 
on  real  estate,  committed  in  the  lifetime  of  the  decedent.''^ 
And  where  deceased  had  judgment  in  his  lifetime  in  an 
action  of  unlawful  detainer  for  possession  and  for  damages, 
the  administrator  and  not  the  heir  should  have  execution 
for  the  damages.^®  We  may  lay  it  down  as  a  general  rule 
that  the  personal  representative  may  sue,  not  only  for  all 
debts  due  to  the  decedent  by  specialty  or  otherwise,  but 
for  all  covenants  and  all  contracts  with  the  decedent  broken 
in  his  lifetime;  the  cause  of  action  in  which  the  decedent 
might  have  sued  in  his  lifetime  survives  his  death  and  is 
transmitted  to  his  personal  representative;  and  of  course 
the  representative  may  sue  on  all  contracts,  express  or  im- 
plied, made  with  him  after  the  decedent's  death,  and  for 
injury  to  the  goods  in  his  possession,  or  for  their  detention, 
or  for  the  price  of  them. 

§  183.  Same — Fixtures. — There  are  also  personal  chat- 
tels inanimate  called  fixtures.  These  are  articles  which  were 
chattels,  but  have  become  a  part  of  the  realty,  by  having  been 
let  into  or  united  with  the  land,  or  to  substances  previously 
connected  therewith.  It  is  not  enough  that  it  has  been  laid 
upon  the  land  and  brought  into  contact  with  it.  More  than 
mere  juxtaposition  is  required;  as,  that  the  soil  has  been  dis- 
placed for  the  purpose  of  receiving  the  article,  or  that  the  chat- 
tels be  connected  or  fastened  in  some  mode  to  fabric  previous- 
ly attached  to  the  ground.  As  between  the  personal  repre- 
sentative and  the  heir  it  is  a  general  rule,  that  whatever  is 

0  8  Rev.  St.  1909,  §  10.5;  Musick  v.  Kansas  City,  S.  &  M.  Uy.  Co., 
114  Mo.  .309,  21  S.  W.  491 ;  Mitchell  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co., 
12.3  Mo.  App.  .54.5,  101  S.  W.  727. 

6  9  Sims'  Adm'r  v.  Kelsay,  75  Mo.  68. 


§  184  executor's  right  to  assets  181 

affixed  to  the  freehold  descends  to  the  heir,  as  a  part  of  the 
inheritance.  The  rule  is  generally  upheld  with  rigor  in  favor 
of  the  heir,  and  against  a  claim  to  treat  as  a  personal  chattel 
anything  which  is  affixed  to  the  freehold.  But  the  rule  has 
been  relaxed  with  respect  to  fixtures  put  up  for  the  purpose  of 
trade,  or  for  ornament  or  domestic  convenience;  as  a  cider 
mill,  tables,  although  fastened  to  the  floor;  iron  ovens,  clock 
cases,  although  fixed  to  the  freehold  by  nails  or  otherwise ; 
and  lamps,  chandeliers,  candelabra,  sconces,  brackets,  gas 
fixtures  and  the  various  contrivances  for  lighting  houses.''" 
Stoves  are  not  generally  fixtures,  yet  where  a  heavy  stove  was 
placed  by  the  ancestor  in  the  chimney  having  no  fireplace, 
without  legs,  set  on  brick  work,  with  a  short  funnel  bricked 
around  in  the  chimney,  it  was  regarded  as  real  estate.^ ^  A 
cistern  standing  on  blocks  in  a  cellar  is  a  fixture.^"  And 
pipes  for  conducting  water  through  the  aj^artments  of  a  dwell- 
ing house  and  the  bathing  apparatus  connected  therewith,  pass 
with  the  realty.^^  But  hewed  timbers,  posts,  and  round  logs, 
lying  loosely  upon  land,  though  originally  intended  to  be  put 
into  a  building  upon  the  land,  are  not  fixtures  and  do  not  go 
to  the  heir.''* 

§  184.  Same — As  to  Tenants,  etc. — There  are  three 
things  which  go  to  constitute  a  fixture  in  a  house  (1)  annexa- 
tion, (2)  adaptation  and  (3)  intent ;  and  in  modern  times  the  lat- 
ter two  are  more  important  than  the  other.''^  Many  things 
erected  by  one  who  has  but  a  life  estate  in  land,  or  by  a  tenant 
for  years,  will  not  be  deemed  fixtures,  which  if  erected  by  the 
owner  in  fee  would  be  deemed  such,  and  would  pass  to  his 
heir.''^'  The  object  and  purpose  of  the  annexation  must  be  re- 
garded in  all  cases.     A  chattel  fastened  to  a  building  merely 

7  0  Rogers  V.  Crow,  40  Mo.  91.  9.3  Am.  Dec.  299;  Dounewald  v. 
Turner  Real-Estate  Co.,  44  Mo.  App;  H'yO. 

71  Tuttle  V.  Robinson,  33  N.  IT.  104. 

72  Wall  V.  Hinds,  4  Gray  (Mass.)  2m,  64  Am.  Dec.  64. 

T  3  Cohen  v.  Kyler,  27  Mo.  122;  Cooke  v.  McNeil,  49  Mo.  App.  81; 
Davis  V.  Mugan.  ;j6  Mo.  App.  311. 

'■1  Woodward  v.  Rlanchard,  16  111.  4.30. 

7  5  St.  Louis  Radiator  Mfg.  Co.  v.  Carroll,  72  Mo.  App.  315;  Prog- 
ress Press  Brick  &  Machine  Co.  v.  Gratiot  Brick  &  Quarry  Co.,  1.j1 
Mo.  501.  52  S.  W.  401,  74  Am.  St.  Rep.  557;  Union  Cent.  Life  Ins. 
Co.  V.  Tillery.  152  Mo.  421,  54  S.  W.  220,  75  Am.  St.  Rep.  4S0 ;  Loan 
V.  Gregg.  55  Mo.  App.  5si. 

76  Hunt  V.  Mullanphy,  1  Mo.  508,  14  Am.  Dec.  300;  Rogers  v. 
Crow,  40  Mo.  91,  93  Am.  Dec.  299;  Tudor  Iron  Works  v.  llitt,  49 
Mo.  App.  472. 


182  executor's  right  to  assets  §  184 

for  the  more  complete  enjoyment  and  use  of  it  as  a  chattel  re- 
mains a  chattel  still,  and  is  not  a  part  of  the  freehold,  although 
annexed  to  it,  any  more  than  a  carpet  which  is  attached  to 
the  tloor  by  nails  to  keep  it  stretched  out  is  a  part  of  it.  All 
articles  of  furniture,  movable  in  their  nature,  are  not  fixtures 
though  attached  by  screws  or  nails.  Such  as  hangings,  pier 
glasses,  chimney  glasses,  looking  glasses,  pictures,  book  cases, 
wardrobes,  carpets  and  curtains.  A  mirror  set  in  the  wall, 
after  the  building  was  completed,  so  that  its  removal  would  not 
interfere  with  the  wall,  is  not  a  fixture.''  There  are  some 
articles  which  are  never  corporally  attached  to  the  realty,  but 
which  are  constructively  annexed  to  the  freehold,  and  pass  to 
the  heir,  such  as  padlocks,  keys,  rings,  etc.,  of  the  house.  So 
a  mill  stone  passes,  although  at  the  time  of  the  conveyance  it 
is  severed  from  the  mill  and  removed  for  a  temporary  purpose 
from  its  bed.  And  where  the  stones  and  irons  of  a  grist  mill 
were  accidentally  detached  by  a  flood  carrying  away  the  main 
body  of  the  mill,  they  were  held  to  continue  a  part  of  the 
realty.  Ties  and  rails  laid  down  and  fastened  on  a  railroad 
bed  for  cars  to  pass  over  are  not  personal  property  unless 
made  so  by  agreement,  but  if  they  are  severed  from  the  realty 
they  become  personal  property.'^  So  the  wires  belonging  to 
an  electrical  plant  and  used  as  a  part  of  its  machinery,  how- 
ever far  extended  from  the  lot  or  plant,  are  fixtures.' **  And 
a  press  brick  machine  when  necessary  to  complete  a  manufac- 
turing establishment,  may  be  a  fixture  and  a  part  of  the  re- 
alty.^" 

A  building  erected  by  one  man  on  the  land  of  another  is 
to  be  regarded  as  a  fixture  and  a  part  of  the  realty;  unless 
it  was  erected  with  the  consent  of  the  owner,  or  under  an 
agreement  or  understanding  that  it  might  be  removed  at  any 
time,  in  which  case  it  is  no  part  of  the  land,  but  the  personal 
property  of  the  person  who  built  it.^^ 

7  T  Loan  V.  Gregg,  55  Mo.  App.  581 ;  Cooke  v.  McNeil,  49  Mo. 
App.  81. 

7  8  Tudor  Iron  Works    v.  Hitt,  49  Mo.  App.  472. 

7  9  Southern  Electrical  Supply  Co.  v.  Rolla  Electric  Light  &  Power 
Co.,  75  Mo.  App.  622 ;  St.  Louis  Radiator  Mfg.  Co.  v.  Carroll,  72  Mo. 
App.  315. 

8  0  Progress  Press  P>rick  &  Machine  Co.  v.  Gratiot  Brick  &  Quarry 
Co.,  151  Mo.  501,  52  S.  W.  401.  74  Am.  St.  Eep.  557. 

81  Priestley  v.  Johnson,  67  Mo.  6.32;  Hines  v.  Anient,  43  Mo.  298; 
Dietrick  v.  Murdock,  42  INIo.  279 ;  Tudor  Iron  Works  v.  Hitt,  49  Mo. 
App.  472 ;  Brown  v.  Baldwin,  121  Mo.  126,  25  S.  W.  863. 


§  185  executob's  right  to  assets  183 

§   185.     Same — Between  a  Tenant  and  His  Landlord  the 

old  rule  as  to  lixturcs  is  j^really  relaxed.  It  is  important  to 
consider  what  the  rights  of  a  tenant  in  this  respect  are,  for  his 
personal  representative  will  succeed  to  them.  According  to 
the  common  law,  it  was  waste  for  the  tenant  to  take  down  or 
remove  anything  affixed  to  the  freehold,  although  he  had  put 
it  up  for  his  own  use.  The  principle  still  prevails  as  to  all 
fixtures  that  belong  to  the  landlord,  and  were  attached  to  the 
freehold  when  the  tenant  took  possession,  or  were  subsequently 
annexed  by  the  landlord.  As  a  general  rule  everything  fixed 
to  the  land,  either  immediately  as  a  house,  or  indirectly,  as  a 
window  or  door  in  the  house,  was  considered  as  belonging  to 
the  land,  because  the  things  so  fixed  could  not  be  enjoyed  apart 
from  the  land  to  wiiich  they  were  attached.  But  upon  prin- 
ciples of  general  policy,  a  tenant,  whether  for  life,  for  years, 
or  at  will,  is  permitted  to  carry  away  all  such  fixtures  of  a 
chattel  nature,  as  he  has  himself  erected  upon  the  premises, 
for  the  purpose  of  ornament,  domestic  convenience,  or  to  carry 
on  trade,  provided,  the  removal  can  be  efifected  without  ma- 
terial injury  to  the  freehold.^ ^  So  it  is  now  settled  that  a  ten- 
ant may  take  away  whatever  he  erects  for  the  purpose  of  car- 
rying on  trade,  or  for  the  better  enjoyment  of  the  premises, 
whether  it  be  machinery  or  buildings,  even  though  affixed  to 
the  soil  or  freehold.*^  The  doctrine  was  first  distinctly  ap- 
plied in  a  case  where  a  tenant  for  years,  who  was  a  soap-boiler, 
for  the  convenience  of  his  trade  put  up  vats  and  copper  tables 
upon  the  leasehold  premises.  It  has  been  applied  in  the  case 
of  a  baker's  oven,  salt  pans,  carding  machines,  cider  mills,  and 
furnaces ;  steam  engines,  copper  stills  for  distilling ;  stones 
for  grinding  bark,  affixed  to  a  bark  mill ;  and  to  the  case  of 
a  ball  room  erected  by  the  lessee  of  an  inn,  resting  on  stone 
posts,  slightly  imbedded  in  the  soil,  and  removable  without 
injury  to  the  inheritance.®*  It  has  been  approved  by  the  su- 
preme court  of  the  United  States,  where  Justice  Story  held, 
that  the  question  whether  a  given  article  was  capable  of  re- 
moval does  not  depend  upon  the  form  or  size  of  the  building, 
whether  it  has  a  brick  foundation,  is  one  or  more  stories  high, 
or  has  a  chimney ;    but  that  the  only  question  is,  whether  it 

82  Lacey  v.  Giboney,  3G  Mo.  320,  SS  Am.  Dec.  14."> ;  Graves  v.  Pierce, 
53  Mo.  423. 

83  Ro.cers  V.  Crow,  40  Mo.  01.  03  Am.  Dee.  200:  Bircher  v.  Parker, 
40  Mo.  llS;  Donnewald  v.  Turner  Keal-Kstate  Co.,  44  Mo.  App.  350. 

8  4  P.aUhvin  v.  Merrick,  1  :Mo.  App.  2S1. 


184  executor's  eight  to  assets  §  186 

was  designed  for  the  purposes  of  trade.^^  It  has  been  extend- 
ed to  gardeners  and  nurserymen  who  are  considered  tradesmen, 
and  may  remove  their  green-houses  and  hot  houses,  with  trees 
and  shrubs  planted  for  purposes  of  sale.^^ 

§   186.     Same — Trade  Fixtures  and  for  Agriculture. — It 

seems  to  be  settled  in  England  that  the  privilege  of  removing 
fixtures  erected  for  the  purpose  of  trade,  is  not  extended  to 
the  removal  of  fixtures  erected  for  agricultural  purposes.  But 
Justice  Story  thinks  the  English  doctrine  is  not  applicable  to 
the  circumstances  of  this  country,  and  seems  to  repudiate  it.®^ 
In  Massachusetts,  the  rule  as  to  trade  fixtures  is  extended  to 
the  agricultural  tenant.^^  In  New  York,  the  contrary  opinion 
is  firmly  maintained.  So  the  question  as  to  agricultural  im- 
provements may  be  regarded  as  unsettled  in  this  country.  In 
a  community  whose  paramount  interest  is  the  cultivation  of 
the  soil,  as  in  this  state,  it  is  probable  our  courts  will  entertain 
and  apply  as  liberal  notions  of  policy  to  agricultural  contri- 
vances as  commercial  communities  have  adopted  with  regard 
to  trade. *** 

§  187.  Same — Removal  of  Fixtures. — It  is  generally 
held  that  fixtures  must  be  removed  during  the  term,  or  before 
the  tenant  quits  possession;  otherwise  the  privilege  of  re- 
moval will  be  presumed  to  be  abandoned,  unless  the  tenant 
by  agreement  reserve  the  property  in  them  and  the  right  to 
remove  them  after  the  term  has  expired. ^^  Whatever  fixtures 
the  tenant  would  have  a  right  to  remove  before  the  expiration 
of  his  lease,  his  personal  representative  may  remove  and  treat 
as  chattels.®^  But  the  representative  must  bear  in  mind  that 
the  privilege  of  removing  fixtures,  as  against  the  landlord, 
erected  by  the  deceased  tenant  during  his  tenancy,  does  not 

86  Van  Ness  v.  Pacard,  2  Pet.  (U.  S.)  l.'^.T,  7  L.  Ed.  374;  Hubbell 
V.  East  Cambridge  Five  Cents  Sav.  Bank,  132  Mass.  447,  42  Am. 
Rep.  446. 

86  Adams  v.  St.  Louis  &  S.  F.  Ry.  Co.,  138  Mo.  242,  29  S.  W.  836. 

87  Van  Ness  v.  Pacard,  2  Pet.  (U.  S.)  1.37,  7  L.  Ed.  374. 
8  8  Whiting  V.  Brastow,  4  Piclc.  (Mass.)  310. 

8  9  Lacey  v.  Giboney,  36  Mo.  320,  88  Am.  Dec.  145;  Esther  v.  Burke, 
139  Mo.  App.  267,  123  S.  W.  72. 

0  0  Beckwith  v.  Boyce,  9  Mo.  ,561;  Finney  v.  Watkins,  13  Mo.  291; 
Lacey  v.  Giboney,  36  Mo.  320,  88  Am.  Dec.  145;  Bircher  v.  Parker, 
43  Mo.  443 ;  Donnewald  v.  Turner  Real-Estate  Co.,  44  Mo.  App.  350 ; 
Davis  V.  Mugan,  56  Mo.  App.  311. 

»i  McCracken  v.  Hall,  7  Ind.  30. 


§188  executor's  eight  to  assets  185 

authorize  a  similar  removal  by  the  executor  or  administrator 
of  the  owner  of  land  as  a.ijainst  the  heir  or  devisee."-  Where 
a  tenant  parts  with  his  title  to  the  unexpired  term,  by  an  as- 
signment of  his  lease,  the  transfer  carries  with  it  the  build- 
ings, fixtures  and  machinery  he  may  have  erected  on  the  prem- 
ises. And  an  assignment,  by  way  of  mortgage,  of  a  leasehold 
interest,  would  necessarily  include  all  erections  upon  the  land, 
unless  it  was  apparent  from  the  terms  of  the  instrument,  or 
from  the  nature  of  the  erections,  that  such  was  not  the  inten- 
tion of  the  parties.  So  with  a  mortgagor  generally ;  he  con- 
veys the  land,  by  way  of  security,  and  whatever  is  attached  to 
the  land,  to  be  habitually  used  and  enjoyed  with  it,  wliether 
for  the  purpose  of  trade  and  manufacture  or  not,  goes  with 
it  as  a  part  of  the  mortgage  security.®^  And  the  right  to  levy 
upon  and  sell  under  execution,  a  trade  fixture  belonging  to  a 
tenant  must  be  exercised  during  the  term  or  while  the  tenant 
remains  in  possession."* 

A  devise  of  land  takes  with  it  all  fixtures  in  the  same  con- 
dition as  it  would  have  descended  to  the  heir,  and  fixtures 
which  the  representative  could  claim  against  the  heir  he  may 
claim  against  the  devisee. 

§  188.  As  to  Leases. — All  tenancies  for  years,  and  lease- 
hold estates  unexpired  at  the  death  of  the  tenant  or  lessee 
will  belong  to  his  personal  representative.  The  length  of  the 
term  of  the  lease  does  not  aflfect  its  devolution,  provided  it  be 
of  certain  duration,  on  death  of  the  tenant."^  Thus,  ninety- 
nine  year  leases  and  nine  hundred  and  ninety-nine  year  leases 
are  transmitted  to  the  administrator,  or  executor,  rather  than 
to  the  heirs."*'  Leasehold  interests,  where  the  term  of  the 
lease  is  for  three  years,  or  more,  cannot  be  sold  by  the  ad- 
ministrator or  executor  as  personal  proj^erty ;  the  provisions 
of  the  statutes  relating  to  the  sale  of  real  estate  applying  to 
the  disposition  by  the  executor  or  administrator  of  such  as- 

92  Fisher  v.  Dixon  (Kiig.  H.  of  L.)  12  Clark  &  l-^in.  312. 

93  Davis  V.   Mujitiii.  5G  Mo.  App.  311. 

94  DonnowaUl  v.  Turner  Real-Kstate  Co.,  44  Mo.  Ai)p.  350. 

95  Sutter  V.  Lackmann,  39  Mo.  91;  Orchard  v.  Wrislit-Dalton-Bell- 
Anchor  Store  Co.,  225  Mo.  414,  125  S.  W.  48G,  20  Ann.  Cas.  1072. 

9c  Orchard  v.  Wright-Dalton-Bell-Anchor  Store  Co.,  225  Mo.  414, 
125  S.  W.  486.  20  Ann.  Cas.  1072;  Lenow  v.  Fones,  48  Ark.  557,  4 
S.  W.  5(>;  Whitniire  v.  Wrlirlit,  22  S.  C.  44G,  53  Am.  Rep.  725;  Schee 
V.  Wiseniau,  79  Ind.  392;  Mickey's  Lessee  v.  Wintrode,  7  Ohio,  124, 
pt.  1. 


186  executor's  right  to  assets  §  188 

sets."  Dower  is  assigned,  in  leasehold  interests  for  a  term 
of  twenty  years  or  more,  as  in  real  property.'^"^ 

It  is  not  essential  to  the  representative's  right  to  the  un- 
expired term  of  the  lease  that  the  executor,  administrator  or 
assigns  of  the  decedent  should  be  named  in  the  contract.  The 
personal  representative  must  fulfill  the  contract  or  comply 
with  the  terms  of  the  lease  on  the  part  of  his  decedent.  He 
is  chargeable  with  the  payment  of  rent,  due  for  the  use  of  the 
term,  so  far  as  he  has  assets.  If  he  enters  upon  the  leased 
premises  and  sells  or  assigns  the  lease,  he  will  be  liable  for 
rent  which  accrues  after  the  assignment,  only  in  his  repre- 
sentative capacity.  If  he  underlets,  the  occupancy  of  the  un- 
der tenant  is  his  occupation,  and  he  is  liable  for  rent.  If  the 
profits  of  the  land  are  of  less  value  than  the  rent,  so  that  the 
lease  hold  estate  will  sell  for  nothing  and  there  is  a  deficiency 
of  assets,  the  representative  may  waive  the  lease,  and  surren- 
der the  unexpired  term  to  the  landlord.  And  if  there  are  as- 
sets to  bear  the  yearly  losses  for  some  years,  but  not  during 
the  whole  term,  then  it  seems  the  representative  must  pay  the 
rent  as  long  as  the  assets  will  hold  out,  and  must  then  waive 
the  possession,  giving  notice  to  the  landlord. 

If  a  lease  be  made  for  a  term  of  years,  upon  condition  that 
if  the  tenant  shall  assign  his  term  without  the  consent  of  the 
landlord,  it  shall  be  lawful  for  the  landlord  to  re-enter,  the 
estate  in  the  lease  will  nevertheless  vest  in  the  representative 
of  the  tenant,  and  this  will  be  a  breach  of  the  condition,  and 
in  such  case  the  representative  is  authorized  to  sell  and  assign 
it.  If  the  executor  is  named  in  the  condition  or  covenant,  it 
is  binding  on  him,  and  he  cannot,  in  that  case,  sell  or  assign 
it  without  the  consent  of  the  landlord.  It  is  provided  by  stat- 
ute that  no  tenant  for  a  term  not  exceeding  two  years,  or  at 
will,  or  by  sufferance,  shall  assign  or  transfer  his  term  or  in- 
terest, or  any  part  thereof,  without  the  written  assent  of  the 
landlord. ^'^  But  a  lease  for  a  longer  term  than  two  years  may 
be  assigned,  and  if  the  landlord  does  not  terminate  the  lease 
in  case  of  an  unauthorized  assignment,  the  tenant,  underten- 
ant, or  assignee,  will  be  liable  for  rent  accruing  after  the  as- 


97  Orchard  v.  Wright-Dalton-Rell-Anchor  Store  Co.,  225  Mo.  414, 
125  S.  W.  486,  20  Ann.  Cas.  1072. 

9  8  Rev.  St.  1909,  §  345;  Orchnrrl  v.  Wright-Daltoii-Bell-Anchor 
Store  Co.,  225  Mo.  414,  125  S.  W.  4SG,  20  Anu.  Cas.  1072. 

9  9  Rev.  St.  1909,  §  7880. 


§  189  executor's  right  to  assets  187 

signment,  and  tlie  landlord's  lien  may  be  enforced  against  the 
crop  of  the  tenant  or  suh-tcnant.^"" 

§  189.  Same — As  to  Rents. — Rent  which  became  due  to 
the  estate  after  the  death  of  the  landlord  goes  to  the  heir  and ' 
not  to  the  personal  representative,  even  though  the  rent  is  re- 
served in  the  lease  to  the  landlord,  his  executors  and  adminis- 
trators. On  the  other  hand,  if  the  tenant  makes  an  under- 
lease, reserving  rent  for  himself,  the  rent  accruing  on  his  sub- 
tenancy after  the  death  of  the  principal  tenant,  will  go  to  his 
representative  and  not  to  his  heirs ;  and  this,  even  where  the 
reservation  of  rent  in  the  sub-lease  is  to  the  tenant  and  his 
heirs.  When  no  estate  or  reversion  is  left  in  the  landlord  and 
the  rent  is  reserved,  it  will  go  to  the  personal  representative 
and  not  to  the  heirs.  If  rent  be  reserved  for  years,  and  be 
severed  from  the  reversion — that  is,  if  the  rent  by  devise  or 
otherwise  becomes  payable  to  another  person  than  the  one  who 
owns  the  land  on  which  it  is  reserved — it  will  then  go  to  the 
representative  of  him  to  whom  the  rent  is  reserved.  If  the 
owner  sell  or  assign  his  estate  or  term  or  the  rent  thereafter 
to  fall  due,  his  alienee  or  assignee  may  recover  the  rent.^"^ 
Thus,  if  a  man  owning  land  in  fee  makes  a  lease  for  years,  re- 
serving rent,  and  afterward  devises  the  rent  to  another  who 
dies,  the  representative  of  the  latter,  and  not  his  heir,  will  take 
this  rent. 

As  rent  which  becomes  due  before  the  death  of  the  landlord 
goes  to  his  personal  representative,  and  rent  which  becomes 
due  after  his  death  goes  to  the  heir,  and  is  not  such  a  debt  as 
the  administrator  is  required  to  inventory  and  collect,  he  has 
nothing  to  do  with  it  unless  the  probate  court  has  ordered  him 
to  rent  the  land  to  pay  the  debts ;  and  then  such  order  would 
not  have  a  retrospective  effect,  but  would  apply  to  future  rents 
accruing  to  the  administrator  under  his  contract  of  renting  and 
would  not  include  rents  accruing  after  the  death  of  the  dece- 
dent and  before  the  order  was  made.^°^     It  may  be  important 

100  Garroutte  v.  White.  r>2  Mo.  237,  4  S.  W.  fiSl ;  Glasner  v.  Fred- 
erick, 73  IMo.  App.  424;  Williams  v.  Bradon.  G3  Mo.  .\pp.  513;  Ameri- 
can Cent.  Ins.  Co.  v.  Cluf'ai,'o  &  A.  Ry.  Co.,  74  Mo.  .\pp.  89. 

101  Rev.  St.  1009,  §  7S99 ;  Smith  v.  Aude,  46  Mo.  App.  G31 ;  Brad- 
ford V.  Tilly,  G5  Mo.  App.  ISl ;  Bonnell  v.  Back,  79  Mo.  App.  496; 
Snyder  v.  Parker,  75  Mo.  App.  529. 

102  Bealey  v.  Blake's  Adm'r,  70  Mo.  App.  229;  St.  Louis  Xat.  Rank 
V.  Field,  156  Mo.  .306,  56  S.  W.  1095;  Grant  v.  Hathaway.  21.")  Mo. 
141.  114  S.  W.  609,  15  Ann.  Cas.  567;  Meeks  v.  Clear  Jack  Min.  Co., 
141  Mo.  App.  64S,  124  S.  W.  1084. 


188  executor's  right  to  assets  §  190 

to  know  when  rent  is  due.  Although  the  hour  of  sunset  is  the 
last  hour  appointed  by  law  for  making  demand  or  tender  of 
rent,  to  enable  a  landlord  to  exact  a  forfeiture  of  the  leased 
premises,  yet  rent  is  not  due  until  midnight.  To  illustrate, 
suppose  rent  to  be  payable  on  the  first  day  of  March,  and  by 
the  terms  of  the  lease  the  landlord  may  re-enter  for  non-pay- 
ment; now,  if  the  landlord  designs  to  insist  upon  a  forfeiture, 
he  must  make  his  demand  at  sunset;  but  if  he  dies  after  sun- 
set and  before  midnight  of  the  first  day  of  March,  his  heir  and 
not  his  personal  representative  shall  have  the  rent.  But  if,  in 
such  case,  the  rent  be  paid  on  that  day,  and  then  after  its  pay- 
ment and  before  midnight  the  landlord  dies,  such  payment  will 
be  a  good  satisfaction  against  the  heir,  and  the  money  will  go 
to  the  representative.^"^ 

§  190.  As  to  Stocks. — Shares  in  the  capital  stock  of  cor- 
porations and  joint  stock  companies,  whether  banking,  turn- 
pike, railroad,  or  other  corporations,  with  the  dividends,  ac- 
crued thereon  are  a  species  of  incorporeal  intangible  personal 
property,  in  the  nature  of  things  in  action,  and  go  to  the  per- 
sonal representative,  as  assets. ^°*  The  charters  or  by-laws  of 
these  corporations  generally  point  out  the  mode  in  which  the 
transfer  in  case  of  a  change  of  title  to  shares  of  stock  shall  be 
noticed  on  the  books  of  the  company.  The  capital  stock  of  a 
corporation,  whether  paid  in  or  not,  is  a  trust  fund  pledged  to 
the  payment  of  the  debts  of  the  concern ;  ^°^  and  in  some  cases 
the  corporation  has  a  lien  on  the  stock  for  an  indebtedness  due 
to  it  from  the  holder.^*"^  Such  stocks,  when  they  come  to  the 
notice  of  the  personal  representative,  should  be  taken  in  pos- 
session and  be  inventoried,  appraised  and  sold  as  other  prop- 
erty, subject  to  the  lien  or  incumbrance,  if  any,  or  such  lien 
might  be  discharged  by  order  of  the  probate  court,  with  other 
assets,  and  the  stocks  then  be  disposed  of  as  circumstances  re- 
quire. Where  such  stocks  are  not  required  to  be  sold  for  the 
payment  of  debts,  and  can  be  distributed  among  the  proper 

103  1  Williams,  Ex'rs,  7-30  et  seq. 

104  Vanstone  v.  Goodwin,  42  Mo.  App.  39;  Watson  v.  Sidney  F. 
Woody  Printing  Co.,  56  Mo.  App.  14.5. 

105  Ramsey  v.  Tlionipson  Mfg.  Co.,  116  Mo.  313,  22  S.  W.  719; 
Missouri  Lead  Mining  &  Smelting  Co.  v.  Reinhard,  114  Mo.  218,  21 
S.  W.  488,  35  Am.  St.  Rep.  746;  Warniciv  v.  Baker,  42  Mo.  App. 
4.39 ;  Farmers'  Bank  of  Frankfort  v.  Gallaher,  43  Mo.  App.  482. 

100  Bank  of  Atchison  County  v.  Durfee,  118  Mo.  431,  24  S.  W.  13.3, 
40  Am.  St.  Rep.  .396;  Brinkerlioff-Farriss  Trust  &  Savings  Co.  v. 
Home  Lumber  Co.,  118  Mo.  447,  24  S.  W.  129. 


§  192  executor's  bight  to  assets  189 

distributees,  it  would  be  as  well  perbaps  to  transfer  them  to 
tbe  heirs  without  sale.  The  bonds  of  states,  cities  and  coun- 
ties, and  oth.cr  corporations,  municipal  or  private,  are  often  de- 
scribed commercially  as  stocks.  These  are  generally  made  pay- 
able to  bearer,  pass  by  delivery,  and  vest  in  the  personal  rep- 
resentative, as  other  things  in  action. ^°^ 

§  191.  As  to  Annuities. — An  annuity  is  a  yearly  pay- 
ment of  a  certain  sum  of  money  granted  to  another  in  fee,  for 
life,  or  for  years,  not  charging  land,  but  the  person  of  the 
grantor  only."'*  Annuities  are  generally  regarded  as  mere 
personalty,  and  go  to  the  personal  representative  of  the  an- 
nuitant, where  it  extends  beyond  his  own  life.  An  annuity, 
however,  partakes  so  much  of  the  nature  of  realty  that  when 
granted  with  words  of  inheritance,  but  not  otherwise,  it  is 
descendible  and  goes  to  the  heir;  subject,  however,  to  the 
payment  of  debts.  Such  arrears  only  are  generally  recover- 
able by  the  personal  representative,  as  accrued  prior  to  the 
last  day  of  payment  which  happened  before  the  annuitant's 
death.  An  annuity,  however,  granted  for  maintenance  to  in- 
fants, or  married  women  living  separate  from  their  husbands, 
will  be  computed  and  apportioned  up  to  the  day  of  their  deaths, 
and  their  representative  may  recover  accordingly.  This  excep- 
tion arises,  it  is  said  from  necessity ;  for  otherwise  such  per- 
sons could  not  obtain  necessaries. 

The  present  value  of  an  annuity  may  be  calculated  in  ac- 
cordance with  the  table  in  section  8499,  R.  S.  Mo.  1909,  which 
gives  the  present  value,  on  the  basis  of  six  per  cent,  interest, 
of  an  annuity  of  one  dollar,  according  to  the  Carlisle  tables 
of  mortality.  One  whose  claim  is  secured  by  bond  and  deed 
of  trust  cannot  be  compelled  to  enforce  his  lien  before  pro- 
ceeding against  the  general  estate  of  the  obligor  by  proving 
the  value  of  his  annuity  as  a  demand  not  yet  due.^°"  x\n- 
nuitants  cannot  create  a  charge  upon  the  trust  fund  so  as  to 
impair  the  principal  from  which  it  springs.^ ^° 

§  192.  As  to  Property  Held  in  Trust.— The  title  of  the 
executor  or  administrator  in  the  case  of  personal  property  or 
of  the  heirs  in  the  case  of  real  estate  is  that  of  the  deceased. 
Hence,  where  the  absolute  ownership  of  personal  or  of  real 
property  did  not  vest  in  the  deceased,  such  property  does  not 
constitute  assets  for  distribution  in  the  hands  of  either  execu- 

107  2  Rodfield  on  Wills.  IGS.  io«  1  Williams,  Ex'rs,  722. 

108  Schmieding  v.  Doellner,  13  Mo.  App.  228. 
110  Post  V.  Cavender,  12  Mo.  App.  ii<). 


190  executor's  right  to  assets  §  192 

tor,  administrator,  or  heirs/^^  Where  the  decedent  is  the 
trustee  in  an  express  trust,  or  has  entered  into  a  contract  in 
his  own  name  for  the  benefit  of  another,  or  has  taken  personal 
or  r^al  property  in  his  own  name,  but  in  trust  for  the  use  or 
benefit  of  another,  his  title  and  ownership  descends  in  the  case 
of  personal  property  to  his  administrator  or  executor  and  in 
the  case  of  real  property  to  the  heirs  of  decedent. ^^^  By  stat- 
ute in  Missouri  it  is  provided  that  in  the  case  of  death  of  the 
trustee  of  an  express  trust  the  beneficiary  in  such  trust  or 
personal  representative  or  heirs  of  the  deceased  trustee  may 
apply  to  the  circuit  court,  and  upon  a  proper  showing-  of  fact 
as  to  the  existence  of  the  trust  and  the  death  of  the  trustee 
obtain  the  appointment  of  a  successor,  who  may  be  the  sherifif 
of  the  county  in  which  the  suit  is  brought  or  some  other  per- 
son suitable  to  act  in  the  capacity  of  trustee.^ ^^ 

The  fundamental  principles  of  our  jurisprudence  demand 
that  not  for  one  moment  shall  the  legal  title  in  real  or  per- 
sonal property  be  "in  the  air,"  but  must  on  the  death  of  the 
owner  vest  immediately  in  some  one.  In  case  of  a  trust,  where 
the  terms  of  the  trust  do  not  expressly  provide  for  its  devolu- 
tion on  the  death  of  the  trustee,  the  interim  between  such 
death  and  the  appointment  of  the  succeeding  trustee,  as  au- 
thorized by  the  statute,  is  not  vacant,  but  is  occupied  by  the 
personal  representative  of  the  deceased  trustee  where  the 
trust  relates  to  personal  property,  and  by  the  heirs  of  the  de- 
ceased trustee  where  it  relates  to  real  property.  The  trust 
is  not  extinguished  by  the  death  of  the  trustee,  although  its 
devolution  is  not  provided  for  in  the  instrument  creating  it. 

§  193.  As  to  Patents. — When  a  patent  for  an  invention 
or  discovery  is  granted,  the  law  impresses  on  it  all  the  qual- 
ities and  characteristics  of  property,  for  the  specified  period 
■ — seventeen  years;  and  has  enabled  the  inventor  to  hold 
and  deal  with  it  the  same  as  with  any  other  description  of 
property  belonging  to  him,  and  on  his  death  it  passes,  with 
the  rest  of  his  personal  estate,  to  his  executor  or  adminis- 
trator, and  becomes  part  of  the  assets. ^^*     When  an  inven- 

111  Hook  V.  Dyer,  47  Mo.  214. 

112  State  ex  rel.  Boughton  v.  Tubb,  22  Mo.  App.  91;  Gimbel  v. 
Peguers,  62  Mo.  240;  Ewing  v.  Shannahan,  113  Mo.  188,  20  S.  W. 
lOO'i;  Newman  v.  Newman,  152  Mo.  398,  54  S.  W.  19;  Reyburn  v. 
Mitchell,  106  Mo.  308,  16  S.  W.  592,  27  Am.  St.  Rep.  350. 

113  Rev.  St.  1909,  §§  11919,  11920. 

114  Rev.  St.  U.  S.  1874,  pp.  953,  954. 


§  194  executor's  right  to  assets  101 

tor  has  died  before  making  application  for  a  patent,  the  law 
provides  that  the  right  of  applying-  for  and  obtaining  a  pat- 
ent shall  devolve  on  his  executor  or  administrator,  in  trust 
for  his  heirs  or  devisees."^  The  same  statute  permits  an 
extension  of  a  patent  beyond  the  original  period  of  its  limi- 
tation on  the  application  of  the  patentee,  in  the  mode  pre- 
scribed. In  the  case  of  the  death  of  the  patentee  who  in  his 
lifetime  disposed  of  his  entire  interest  in  the  right  granted 
by  the  letters,  it  was  held  that  the  right  of  extension  annex- 
ed to  the  benefit  of  the  administrator  only  as  the  represen- 
tative of  the  deceased."*'  The  persons  lawfully  using  any 
such  right  a't  the  expiration  of  the  first  term  are  lawfully 
entitled  to  continue  such  use.  Where,  by  the  contract,  one 
party  sold  and  conveyed  to  another  the  exclusive  right  to 
sell,  rent  and  use  the  said  regulator,  such  right  at  once  vest- 
ed in  the  purchaser.^^^  An  assignment  of  a  patent  right 
need  not  be  recorded  to  give  it  validity,  and  where  the  un- 
recorded assignment  is  destroyed  with  a  view  to  reinvest 
the  title  in  the  assignor  it  will  have  that  efifect."^ 

§  194.  As  to  Copyright. — The  right  of  one  who  has  com- 
posed a  book,  map,  chart,  or  musical  composition,  or  has 
engraved  or  designed  any  other  work  of  art  or  skill,  pro- 
tected by  the  statute,  becomes  his  personal  property  upon 
his  comi)lying  with  the  act  of  Congress  concerning  copy- 
rights. For  the  period  of  twenty-eight  years  it  belongs  sole- 
ly to  him,  his  executors,  administrators  or  assigns,  and  they 
alone  have  the  right  to  print,  reprint,  publish  and  sell  the 
composition  of  the  author.  The  extension  of  fourteen  years 
additional  in  case  of  the  author's  death  is  not  the  right  of 
the  personal  representative,  but  of  the  widow  or  children 
of  the  deceased."''  The  owner  has  the  exclusive  right  to 
sell  his  books  or  production  in  any  manner  and  anywhere 
in  the  United  States,  and  he  may  transfer  this  right  to  an- 
other for  the  whole  or  a  part  of  the  country,  or  grant  a  li- 
cense to  sell  and  retain  the  legal  title  to  the  copyright ;  ^-<> 
and  damages  for  an  infringement  upon  this  copyright,  upon 

115  Id.  p.  955. 

lie  Wilson  V.  Rousseau,  4  How.  (U.  S.)  G4G,  11  L.  Ed.  1141. 

117  Ford  V.  Dyer,  148  Mo.  528,  49  S.  W.  1091;  Sone  v.  Palmer,  28 
Mo.  5:59. 

118  Winfrey  v.  Gallatin,  72  Mo.  App.  191. 

1 1 9  Rev.  St.  U.  S.  1874,  p.  96G. 

120  Davis  V.  Vories,  141  Mo.  234,  42  S.  W.  707. 


192  executor's  right  to  assets  §  195 

the  death  of  the  owner,  might  be  recovered  by  the  adminis- 
trator.^-i 

§  195.  As  to  Policies  of  Insurance, — Where  personal 
property  is  insured  the  policy  passes  to  the  representative. 
Where  the  insurance  money  secured  by  a  policy  is  made 
payable  to  the  insured,  his  executors,  administrators  or  as- 
signs, and  the  insurance  upon  houses  and  buildings  in  fee 
which  afterward  descend  to  the  heir,  and  are  burnt  during 
the  life  of  the  policy,  the  personal  representative  of  the  in- 
sured, and  not  the  heir,  will  be  entitled  to  receive  the  pro- 
ceeds of  the  policy.  In  a  case  of  this  kind,  it  was  contended 
that  the  representative  held  the  proceeds  of  the  policy  as  a 
trustee  for  the  heir.  But  the  Lord  Chancellor  declared  that 
it  was  utterly  impossible  to  make  the  representative  a  trus- 
tee,^^^  If,  however,  by  the  act  of  the  insured,  or  the  party 
entitled  to  the  benefit  of  the  proceeds  of  the  policy,  those 
proceeds  should  become  clothed  with  the  character  of  real 
estate,  or  with  a  trust,  the  party  entitled  to  the  real  estate, 
as  heir  or  devisee,  will  become  entitled  to  them  in  prefer- 
ence to  those  who  may  claim  them  as  personalty.^^^  Losses 
occurring  before  the  death  of  the  insured  must  be  paid  to 
the  representative,  and  not  to  the  heir.  And  where  the  de- 
ceased took  out  a  five-year  policy  on  his  dwelling  house,  giv- 
ing his  note  for  the  premiums  conditioned  that  if  the  note 
was  not  paid  when  due  the  policy  should  be  void  until  it  was 
paid,  and  the  insured  died  a  few  months  before  the  note  be- 
came due,  and  by  request  of  the  heirs  there  was  an  indorse- 
ment on  the  policy  that  the  property  belonged  to  them,  and 
the  loss,  if  any,  was  payable  to  them,  and  the  loss  occurred 
a  few  days  after  the  note  became  due.  The  note  was  not 
paid  by,  nor  demanded  of  the  administrator  or  presented  for 
allowance.  It  was  held  that  the  contract  being  personal 
with  the  assured,  his  executors  etc.,  the  executor  was  the 
proper  plaintiff  in  an  action  upon  the  policy,  but  he  was  a 
mere  trustee  as  distinguished  from  his  executorship ;  that 
the  realty  descended  to  the  heirs  and  the  loss  was  the  loss 
of  the  heirs  and  not  of  the  estate ;  that  it  was  the  duty  of 
the  heirs  to  have  paid  the  note  at  maturity,  and  not  having 

121  Black  V.  Henry  G.  Allen  Co.  (C.  C.)  42  Fed.  618,  9  L.  R.  A. 
433 ;  Id.,  56  Fed.  7G4 ;  Baldwin  v.  Baird  (C.  C.)  25  Fed.  293. 

122  Phillips  on  Ins.    §  104. 

123  Ellis  on  Ins.  84. 


§  196  executob's  right  to  assets  193 

done  so,  the  loss  occurring-  while  they  were  yet  in  default, 
the  company  was  not  liable. ^-^ 

If  the  decedent  held  a  policy  of  insurance  on  the  life  of 
another,  it  will  vest  in  his  personal  representative,  and  not 
in  his  heir.^-°  But  if  the  policy  be  payable  to  the  party  in- 
sured or  to  his  heirs  or  representatives,  and  it  appears  to 
have  been  the  intention  of  the  party  to  make  provisions  for 
his  family  in  the  event  of  his  death,  the  money  will  go  to 
the  heirs,  and  not  to  the  representatives  as  ordinary  as- 
sets.^^®  The  general  rule  is  that  the  beneficiaries  in  the  poli- 
cy are  entitled  to  the  insurance  money,^-^  The  insurance  in 
benevolent  or  assessment  companies  is  by  statute  exempt 
from  the  payment  of  debts  or  liabilities  of  the  certificate 
holder  or  beneficiary  or  any  person  having  a  right  to  the 
fund  thereunder.^-®  Immediately  on  the  death  of  a  member 
the  beneficiary  fund  vests  and  becomes  a  fixed  interest  in 
the  person  entitled  under  the  certificate,  but  if  the  benefi- 
ciary is  incapacitated  to  take  at  the  death  of  the  member, 
the  fund  should  go  where  the  by-law  of  the  society  contem- 
plated it  should.^'"* 

If  the  beneficiary  dies  before  receiving  payment,  the  fund 
does  not  on  that  account  lose  the  exemption  from  the  pay- 
ment of  debts,  but  retains  that  quality .^^^  But  the  adminis- 
trator of  the  estate  of  such  beneficiary  is  the  only  party  en- 
titled to  collect  such  fund,  unless  the  probate  court  has  dis- 
pensed with  administration,  but  he  would  hold  the  funds, 
when  collected  by  him,  in  trust  for  ^he  persons  entitled  to 
them,  and  not  for  the  benefit  of  creditors. ^^^ 

§  196.  As  to  Apprentices. — On  the  death  of  the  master 
the  apprentice  is  discharged,  and  the  representative  of  the 
deceased  has  no  claim,  upon  the  services  of  the  apprentice. 
But  it  is  said  the  estate  of  the  master  is  chargeable  with  the 
necessary  maintenance  of  the  infant  apprentice.  Articles  of 
apprenticeship  are  not  assignable.     Such  is  the  facility  for 

124  Saunor  v.  Phoenix  Ins.  Co.  of  Brooklyn,  41  Mo.  App.  4S0. 

125  In  re  Ulrici's  Estate,  145  Mo.  App.  463,  122  S.  W.  761. 

126  Loos  V.  John  Hancock  Mut.  Life  Ins.  Co.,  41  Mo.  53S. 

127  Bli.ss  on  Life  Ins.  §  317  et  seq. 

128  Rev.  St.  1909,  §  7120. 

128  Hofman  v.  Grand  Lodge  Brotherhood  Locomotive  Firemen,  73 
Mo.  App.  47 ;  Lister  v.  Lister,  73  Mo.  App.  99. 

130  Grand  Lodge  A.  O.  U.  W.  v.  Dister,  77  Mo.  App.  608. 

131  Grand  Lodge  A.  O.  U.  W.  v.  Dister,  77  Mo.  App.  608. 

Kel.Mo.P.G.— 13 


194  executor's  right  to  assets  §  197 

finding  employment  in  this  country,  and  such  the  independ- 
ent temper  of  its  youth,  that  no  trouble  with  this  question 
is  likely  to  occur. 

§  197.  As  to  Partnership  Effects. — Debts  due  to  and 
properly  owned  by  two  or  more  persons  jointly  or  by  a  part- 
nership continue  under  the  control  and  under  the  possession 
of  the  surviving  partner,  as  he  has  the  prior  right  to  admin- 
ister on  the  partnership  estate.  It  is  the  duty  of  the  sur- 
viving partner  to  collect  the  assets  and  wind  up  the  busi- 
ness of  the  firm,  a  duty  the  common  law,  as  well  as  the  stat- 
utes, imposes  upon  him  as  incident  to  the  contract  of  part- 
nership. At  common  law  no  remuneration  was  promised  or 
implied  for  the  performance  of  this  duty.^'-  The  right  of 
the  surviving  partner  to  take  possession  of  the  partnership 
assets  and  wind  up  the  concern  without  giving  bond  is  fully 
recognized  in  this  state,  but  if  he  does  not  give  bond  and 
proceed  to  administer  under  the  statute,  the  administrator 
of  the  deceased  partner  may  do  so,  and  take  charge  of  the 
partnership  effects  and  administer  the  partnership  estate.^' "' 
On  the  death  of  a  surviving  partner,  his  administrator 
stands  in  the  same  position  as  to  the  partnership  eftects 
which  was  occupied  by  the  surviving  partner  in  his  lifetime. 
He  has  the  legal  title  to  the  partnership  effects,  succeedhig 
to  it  by  virtue  of  his  trust  as  administrator  of  the  surviving 
partner;  yet  they  are  assets  of  the  firm  and  not  of  his  intes- 
tate, and  should  be  inventoried  as  the  gross  amount  of  the 
partnership  estate  as  shown  by  the  appraisal. ^^'^  The  mode 
of  settling  partnership  estates  is  now  regulated  by  stat- 
ute.^=*^ 

§  198.  As  to  Goods  Mortgaged. — By  the  common  law  a 
mortgage  transferred  the  legal  title,  leaving  the  mortgagor 
only  an  equity  of  redemption  in  the  land  or  property  mort- 
gaged, but  the  modern  doctrine  is  that  the  mortgage  is  sim- 
ply a  security  and  the  mortgagor  is  the  owner  to  all  intents 
subject  to  the  rights  of  the  mortgagee,  so  that  in  case  of  in- 

132  Ames  V.  Downing,  1  Bradf.  Hxn:  (N.  Y.)  321;  3  Kent,  p.  71,  §  (r.). 

i33Bredo\v  v.  Mutual  Sav.  Inst,  28  Mo.  181;  Hargadine  v.  Gib- 
bons, 114  Mo.  561,  21  S.  W.  726;  Crook  v.  Tull,  111  Mo.  2,S3,  20 
S.  W.  8. 

134  Thomson  v.  Thomson,  1  Bradf.  Sur.  (N.  Y.)  24;  Rev.  St.  1909, 

8  90. 

13  5  Hev.    St.    1009,    §§   88-99;    Scudder  v.  Ames,    142   Mo.    187,   43 

S.  W.  6.^9. 


§  198  executor's  right  to  assets  195 

jury  to  the  freeholder  or  to  the  goods  mortgaged  the  mort- 
gagor would  sustain  the  loss  and  he  would  be  entitled  to 
compensation  for  such  injury,  subject  to  the  right  of  the 
mortgagee. ^^"  It  is  claimed  that  upon  breach  of  the  condi- 
tion in  a  chattel  mortgage  the  mortgagee  not  only  has  the 
right  to  take  possession  of  the  goods,  but  becomes  the  legal 
owner  of  them,  but  this  ownership  to  be  in  harmony  with  the 
right  of  a  mortgagee  of  real  estate  in  the  property  mortgag- 
ed is  only  for  the  purpose  of  obtaining  satisfaction  of  the 
debt,  and  after  that  has  been  accomplished  what  remains  of 
the  property  or  its  proceeds  should  belong  to  the  mortga- 
gor.^^' The  property  should  be  so  described  that  a  person 
could  from  the  description  pick  out  and  identify  the  articles, 
and  the  location  given  of  the  article  or  goods  may  be  an  im- 
portant aid  in  the  description. ^^^  After  acquired  property 
may  be  included  in  a  mortgage  and  where  new  goods  are 
intentionally  intermingled  with  the  old  stock  covered  by  a 
mortgage  without  the  assent  of  the  mortgagee,  unless  they 
can  be  distinguished  and  separated  the  mortgagee  is  entitled 
to  entire  stock  as  against  an  attaching  creditor.^^^  A  mort- 
gage of  chattels  not  in  existence,  such  as  an  unplanted  croj), 
gives  only  an  equitable  lien,  and  when  the  property  comes 
into  existence  the  lien  will  attach,  which  must  be  enforced 
by  a  resort  to  equity.^*"  While  the  mortgagor  is  in  posses- 
sion of  the  property  with  the  right  to  use  it,  he  may  have 
necessary  repairs,  and  the  artisan  making  the  repairs  would 
have  a  lien  therefor  which  would  have  preference  over  the 
mortgage. "^^^  After  condition  broken  by  default  in  failing 
to  pay  the  debt,  or  for  other  cause  mentioned  in  the  mort- 
gage, the  mortgagee  may  take  possession  of  the  property 
and  dispose  of  it  for  the  payment  of  his  dcbt.^*-    And  if  the 

13C  Matthews  v.  Missouri  Pac.  liy.  Co.,  142  Mo.  G45,  44  S.  W.  802; 
Dickerson  v.  Bridges,  147  ISIo.  235,  48  S.  W.  825. 

137  straub  x.  Siuipson,  74  Mo.  App.  230;  Arkansas  City  Bank  v. 
Cassidy,  71   Mo.  App.  180;  Ililsert  v.  Levin,  72  Mo.  App.  48. 

13b  J.  H.  Nortli  Furniture  &  Carpet  Co.  v.  Davis,  76  Mo.  App.  512; 
Chrisman-Sawyer  Banking:  Co.  v.  Strahorn-Hutton-Evans  Commis- 
sion Co.,  80  Mo.  App.  438 ;  Vermont  Marble  Co.  v.  Ragsdale,  74  Mo. 
App.  42;  Evans-Snyder-Buell  Co.  v.  Turner.  143  Mo.  638,  45  S.  W. 
654 ;  IMeyer  Bros.  Druir  Co.  v.  Self.  77  Mo.  App.  284. 

139  Wyeth  Hardware  Co.  v.  Beard,  79  Mo.  App.  189. 

140  Littlefield  v.  Lemley,  75  Mo.  App.  511. 

141  Kirtley  v.  Jlorris,  43  Mo.  App.  144;  Miller  v.  Crabbe,  66  Mo. 
App.  6(;0. 

142  Fahy  v.  Gordon.  133  Mo.  414,  34  S.  W.  SSI  ;  State  ex  rel.  Jones 


196  executor's  right  to  assets  §  199 

debt  does  not  exceed  one  hundred  dollars  the  mortgagee  or 
his  personal  representative  may  sell  the  property  upon  giv- 
ing proper  notice/*^  or  if  the  debt  amounts  to  fifty  dollars 
or  more  the  mortgage  may  be  foreclosed  in  the  circuit 
court.^**  These  provisions  of  the  statute  should  be  consid- 
ered a  part  of  the  mortgage. ^^"^  Chattels  mortgaged,  or 
pledged  by  the  decedent,  and  redeemed  by  his  representa- 
tive, will  be  assets  for  so  much  as  they  are  w^orth  beyond 
the  sum  paid  for  their  redemption. ^''^  If  the  representative 
redeem  the  goods  mortgaged  or  pledged,  with  his  own  mon- 
ey, he  must,  in  general,  be  reimbursed.-^*^ 

§  199.  Separate  Property  of  the  Wife. — The  oft  repeated 
rule  of  the  common  law  is  that  marriage  is  an  absolute  gift 
to  the  husband  of  all  the  personal  estate  of  the  wife  which 
she  had  at  the  time  of  the  marriage,  or  which  accrues  to  her 
in  her  own  right,  during  coverture,  and  upon  his  death  it 
will  vest  in  his  personal  representative.  At  common  law 
her  property  may  be  secured  to  her  separate  use  by  means 
of  a  marriage  settlement,  made  with  the  consent  of  the  hus- 
band, which  places  it  in  the  hands  of  a  trustee.  Indeed  it 
does  not  seem  essential  that  there  should  be  a  trustee,  for 
in  cases  where  her  property  is  secured  to  her  separate  use, 
by  an  ante-nuptial  contract  without  the  intervention  of  a 
trustee,  courts  of  equity  will  uphold  and  protect  her  right 
to  it,  and  especially,  where  the  husband  allows  the  wife  to 
keep  her  property  separate  from  the  general  mass  of  his 
own.  And  where  the  wife  has  pin-money,  or  a  separate 
maintenance  settled  upon  her,  and  by  good  management 
saves  money  out  of  it,  she  will  hold  it  free  from  the  claims 
of  her  husband's  creditors  or  representatives.  So,  if  the 
wife,  in  the  absence  of  her  husband,  carry  on  trade  and  sup- 
port herself  and  children,  the  capital  being  furnished  by  her 
friends,  or  her  own  industry  or  means,  she  will  hold  the 
avails  of  her  business  to  her  separate  use.  It  seems  to  be 
settled,  that  if  the  husband,  until  his  death,  suffer  the  wife 

V.  White,  70  Mo.  App.  1;  State,  to  Use  of  St.  Louis  Brewing  Ass'n, 
V.  Murphy,  04  Mo.  Ai)p.  6.", ;  Straub  v.  Simpson,  74  Mo.  App.  230. 

143  Rev.   St.  1900,   §  2840. 

1*4  Kev.  St.  1909,  §  2S2.S. 

145  Cravens  v.  New  York  Life  Ins.  Co.,  148  Mo.  .5^.3,  50  S.  W.  .519, 
5.3  L.  R.  A.  .30.5,  71  Am.  St.  Rep.  628;  State  ex  rel.  O'P.riant  v.  IveuUuk 
&  W.  R.  Co.,  1.53  Mo.  157.  54  S.  W.  559,  77  Am.  St.  Rep.  704. 

140  Tlionipson  v.  DoUiver,  132  Mass.  103. 

147  Glaholm  v.  Rouutree,  6  Q.  B.  (Div.)  710. 


§  200  executor's  right  to  assets  197 

to  maintain  her  separate  estate  and  so  treat  it  himself,  it 
must  be  so  regarded  after  his  death,  and  his  personal  repre- 
sentative is  not  called  upon  to  notice  it  in  the  settlement  of 
the  estate. ^*^  An  ante-nuptial  settlement  of  money,  jewels, 
furniture  or  other  property  made  by  the  husband  out  of  his 
own  property  upon  the  wife  to  her  own  separate  use,  will 
be  valid,  unless  fraudulent,  as  to  creditors.  So  a  post-nuptial 
settlement  of  property  by  the  husband  upon  the  wife  will 
also  be  valid,  unless  fraudulent  as  to  creditors,  and  bona  fide 
purchasers.  But  when  the  settlement  upon  the  wife  by  the 
husband  is  made  upon  some  valid  and  distinct  considera- 
tion, it  will  not  be  held  fraudulent  as  to  creditors.  The 
character  of  her  property,  whether  it  be  her  separate  estate 
or  not,  may  be  determined  by  the  deed  or  marriage  settle- 
ment or  contract.-^*^  Gifts  by  the  husband  to  the  wife  by 
way  of  pin-money,  that  is  such  profits  as  the  wife  may  de- 
rive from  the  sale  of  butter,  eggs,  poultry,  pigs,  fruit,  and 
the  like,  or  even  pin-money  given  to  her  to  purchase  cloth- 
ing, or  ornament,  or  for  her  separate  expenditure,  becomes 
her  exclusive  property  and  the  representative  of  the  hus- 
band has  no  claim  upon  it,  in  the  settlement  of  the  estate. 
The  paraphernalia  of  the  wife — her  wearing  apparel,  jewelry 
and  ornaments — does  not  go  to  the  personal  representative 
of  the  husband,  nor  is  it  liable  to  the  claims  of  his  creditors. 
The  policy  of  our  law  has  been  to  restrict  rather  than  to  en- 
large the  rights  of  the  husband  in  the  property  of  the  wife, 
both  real  and  personal. ^^°  Her  right  to  the  possession,  in- 
come and  control  of  her  separate  estate  does  not  depend  on 
her  living  with  her  husband,  nor  whether  she  is  faithful  to 
her  marital  obligations. ^^^  The  rules  above  stated  are  now 
largely  a  matter  of  historical  interest  alone,  as  they  have 
been  rendered  obsolete  by  statute  through  the  enactment  of 
the  so-called  Married  Women's  Acts  in  nearly  every  state  in 
the  Union. 

§  200.  Same. — In  Missouri,  the  wife  is  entitled  to  the 
rents,  issues  and  products  of  her  real  estate,  and  all  moneys 
and  obligations  arising  from  the  sale  thereof.^'^^  And  all 
real  estate  and  personal  property,  including  rights  in  action, 

148  Couiihlin  V.  Kyan,  43  Mo.  99.  97  Am.  Dec.  375. 

i^oKlenke  v.  Koeltze,  75  Mo.  239. 

iBo  Martin  v.  Trail.  142  Mo.  85,  43  S.  W.  655. 

151  Woodward  v.  Woodward,  148  Mo.  241,  49  S.  W.  1001. 

152  Rev.  St.  1909,  §  8308. 


198  executor's  right  to  assets  §  200 

belonging-  to  her  at  her  marriage,  or  which  have  come  to  her 
during  coverture  by  gift,  bequest  or  inheritance,  or  by  pur- 
chase with  her  separate  means  or  property,  or  due  to  her 
as  wages  for  her  separate  labor,  or  growing  out  of  any  vio- 
lation of  her  personal  rights,  together  with  all  increase,  in- 
come and  profits  thereof,  are  her  separate  estate  and  are  un- 
der her  sole  control,  although  used  and  in  the  possession  of 
the  husband,  unless  she  gives  him  full  authority  in  writing 
to  sell,  incumber  or  dispose  of  it.  He  has  no  right  in  her 
property  acquired  since  the  laws  of  1875  went  into  effect, 
and  the  indorsement  of  her  name  upon  a  note  does  not 
transfer  it  to  her  husband;  it  is  not  a  sufficient  writing.^^^ 
But  such  property  is  liable  for  her  debts  contracted  before 
marriage  and  for  any  debts  or  liability  created  for  the  bene- 
fit of  herself  or  family.^^*  So  where  property  is  secured  to 
her  separate  use  by  ante-nuptial  contract,  or  marriage  settle- 
ment ;  ^^=  or  where  she  is  permitted  to  carry  on  business  on 
her  sole  and  separate  account, ^^"^  the  means  involved  are  her 
separate  property.  And  a  note  taken  in  the  name  of  the 
wife  for  property  of  the  husband  is  prima  facie  a  gift  to  her 
and  becomes  her  separate  property.^"  Her  separate  estate 
does  not  go  to  the  husband  at  her  death,  nor  to  his  adminis- 
trator at  his  death. ^  =  ^  But  it  passes  to  her  administrator, 
and  is  subject  to  the  laws  of  distribution  among  the  heirs 
and  creditors.^ ^^  He  has  no  right  to  interfere  with  the  rents 
and  profits  of  her  separate  estate.^''"  Property  held  by  her 
in  another  state  as  her  separate  property  continues  to  be 
such  after  it  is  brought  into  this  state.'"^     But  if  he  is  in 

153  Winn  V.  Riley,  151  Mo.  61,  52  S.  W.  27,  74  Am.  St.  Rep.  517; 
Hurt  V.  Cook,  151  Mo.  41G,  52  S.  W.  39G. 

154  Rev.  St.  1909,  §  8.309;  Woodward  v.  Woodward,  148  Mo.  241, 
49  S.  W.  1001;  Megraw  v.  Woods,  93  Mo.  App.  G47,  67  S.  W.  709; 
Gabriel  v.  Mullen,  111  Mo.  119,  19  S.  W.  1099. 

155  Overall  v.  Ellis,  38  Mo.  209;    Klenke  v.  Koeltze,  75  Mo.  239. 
i56Coughlin  V.   Ryan,   43  Mo.   99,   97  Am.    Dec,   375;    Roberts  v. 

Walker,  101  Mo.  597,  14  S.  W.  631. 

157  Richardson  v.  Lowry,  67  Mo.  411;  Terry  v.  Wilson,  63  Mo.  493. 

158  Rev.  St.  1909,  §  8.309;  Benne  v.  Scbuecko,  100  Mo.  250,  13  S. 
W.  82 ;  Leete  v.  State  Bank  of  St.  Louis,  115  Mo.  184,  21  S.  W.  788. 

159  Locke  V.  Mcl'herson,  163  Mo.  493,  63  S.  W.  726,  52  L.  R.  A. 
420,  85  Am.  St.  Rep.  546. 

160  Reed  V.  Painter,  145  Mo.  .341,  46  S.  W.  1089. 

ici  Rice  V.  Shipley,  159  Mo.  399,  GO  S.  W.  740;  McClain  v.  Abshire, 
72  Mo.  App.  390. 


§  201  executor's  right  to  assets  199 

possession  of  lier  land,  not  her  sci)arate  estate,  he  would  be 
entitled  to  the  rents. ^"- 

A  policy  of  life  insurance  expressed  to  be  for  the  benefit 
of  a  married  woman  inures  to  her  separate  use  and  benefit 
free  from  all  claims  of  representatives,  creditors,  or  any  oth- 
er persons.  A  secret  settlement  made  by  a  woman  a  few 
days  before  her  marriaije,  and  in  contemplation  of  the  event, 
was  held  to  be  fraudulent  and  void  as  against  the  hus- 
band.^^^ 

§  201.  When  the  Wife  Survives. — Property  falling  un- 
der the  description  of  choses  in  action  of  the  wife,  are  debts 
owing  to  her  on  bond,  bill  or  note  or  otherwise,  arrears  for 
rent,  legacies,  trust  funds,  residuary  personal  estate,  money 
in  the  funds,  and  other  property  recoverable  by  action  or 
suit;  also  all  stocks  or  shares  in  joint  stock  companies;  in 
short  all  personal  estate  not  in  actual  possession.^"*  The 
wife's  choses  in  action  do  not  become  the  property  of  the 
husband  by  reason  of  the  marriage  unless  he  reduce  them 
into  possession  during  coverture  with  her  written  assent; 
and  if  the  wife  survives  him  she  will  be  entitled  to  all  her 
choses  in  action  which  he  has  not  so  reduced  to  possession. 
And  the  law  is  the  same  with  respect  to  her  choses  in  action 
whether  they  come  to  her  before  or  after  the  marriage. 

Constructive  possession  or  a  mere  intention  by  the  hus- 
band to  reduce  the  wife's  choses  in  action  to  possession  is 
insufficient  to  defeat  her  claim  to  them  in  the  case  of  her 
surviving  him.  There  must  be  some  decisive  and  unequivo- 
cal act  on  the  part  of  the  husband  which  divests  the  right 
of  the  wife  and  makes  his  right  absolute ;  such  as  recover- 
ing judgment  in  his  own  name,  or  issuing  an  execution  on 
a  judgment  recovered  by  him  and  his  wife,  or  by  recovering 
the  money,  or  obtaining  a  decree  in  equity  for  the  payment 
of  the  money  to  him,  or  by  assigning  them  for  a  valuable 
consideration  or  in  payment  of  his  debts,  or  giving  an  order 
to  a  third  person  for  the  money,  etc.  Such  is  the  common 
law,  but  the  rule  is  somewhat  changed  by  statute. ^'^^  The 
husband  can  reduce  his  wife's  personalty  to  possession  only 
by  procuring  her  written  assent  thereto.^"''     This  statute 

162  Smith  V.  White.  1(>5  Mo.  SiX),  Go  S.  W.  lOm. 

103  Linlcer  v.  Smith,  4  Wash.  (C.  C.)  224,  Fed.  Cas.  No.  8,373. 

164  1  Williams.  Kxrs,  755:  2  Kedf.  Wills,  170. 

165  Ante,  §  210;  Kev.  St.  1909,  §  8309. 

166  Hart  V.  Leete.  104  Mo.  315,  15  S.  W.  97G;  McGuire  v.  Alien, 
lOS  Mo.  403,  18  S.  W.  282. 


200  executor's  right  to  assets  §  201 

does  not  apply  to  marriages  existing  at  the  date  of  its  pas- 
sage, nor  to  rights  accrued  thereunder.^^"  If  the  husband 
has  converted  her  separate  personal  property  to  his  own  u.-e 
without  her  written  assent,  she  can  recover  the  amount 
from  his  administrator,  or  have  it  allowed  as  a  demand 
against  his  estate  in  the  probate  court. ^*^^ 

On  the  death  of  the  husband,  the  right  to  property  given 
to  the  wife  by  law  is  absolute,  and  on  her  death  vests  in  her 
representatives,  free  from  the  demands  of  her  husband's 
creditors  or  representatives.^'''*  It  has  l:»een  held  in  Missouri 
that  a  right  on  the  part  of  the  wife  to  bring  up  her  children 
in  the  Catholic  faith  arising  out  of  an  ante-nuptial  contract 
does  not  survive  to  the  personal  representative  of  the  de- 
ceased wife,  as  it  is  not  a  property  right.^^** 

§  202.  When  the  Husband  Survives. — At  common  law 
the  surviving  husband  was  entitled  to  all  rights  of  the  wife, 
as  well  in  action  as  in  possession. ^^^  But  in  many  of  the 
states  and  in  this  state,  the  wife's  personal  property  upon 
her  decease  during  the  life  of  the  husband  goes  to  her  heirs 
under  the  law  of  descents  and  distribution.^'-  The  husband 
may  administer  on  her  estate,  but  he  does  it  for  the  benefit 
of  her  creditors  and  distributees.  If  he  obtains  a  divorce  on 
account  of  her  fault  even,  he  is  not  entitled  to  any  interest 
in  her  estate  by  curtesy  or  otherwise,^"  although  the  stat- 
ute expressly  provides  that  when  the  wife  procures  the  di- 
vorce for  the  fault  or  misconduct  of  the  husband  she  is  still 
entitled  to  dower  in  his  estate.^^* 

i67Leete  v.  State  Bank  of  St.  Louis,  11.5  Mo.  184,  21  S.  W.  7S8; 
Clay  V.  Mayr,  144  Mo.  376,  46  S.  W.  157 ;  Bartlett  v.  Ball,  142  Mo. 
28,  43  S.  W.  783;  Winn  v.  liiley.  151  Mo.  61,  52  S.  W.  27,  74  Am. 
St.  Rep.  517 ;  Hurt  v.  Cook,  151  Mo.  416,  52  S.  W.  396. 

lesWinn  v.  Riley,  151  Mo.  61,  52  S.  W.  27,  74  Am.  St.  Rep.  517; 
Church  V.  Church,  73  Mo.  App.  421;  Riley  v.  Vaughn,  116  Mo.  169, 
22  S.  W.  707,  38  Am.  St.  Rep.  586. 

ICO  Hastings  v.  Myer's  Adm'r,  21  Mo.  519. 

170  Brewer  v.  Cary,  148  Mo.  App.  193,  127  S.  W.  685. 

171  Stewart  v.  Stewart,  7  Johns.  Ch.  (N.   Y.)  229. 

172  Curry  v.  Fulkinson's  Ex'rs,  14  Ohio,  100;  Humphrey  v.  Kasson, 
26  Vt.  765;  Coughlin  v.  Ryan,  43  Mo.  99,  97  Am.  Dec.  375;  Locke 
V.  McBherson,  1&3  Mo.  493,  63  S.  W.  726,  52  L.  R.  A.  420,  85  Am.  St. 
Rep.  546. 

173  Doyle  V.  Rolwing,  165  Mo.  231,  65  S.  W.  315,  55  L.  R.  A.  332, 
88  Am.   St.  Rep.  416. 

17  4  Rev.  St  1909,  §  359. 


§  203  executor's  right  to  assets  201 

§  203.  Donatio  Mortis  Causa. — There  is  another  species 
of  interest  in  the  property  of  the  decedent,  which  vests  nei- 
ther in  the  personal  representative,  nor  in  his  widow,  nor 
in  his  heir.  This  is  called  a  donatio  mortis  causa,  and  is  de- 
fined to  be  a  gift  made  in  view  of  the  donor's  death;  condi- 
tioned to  take  effect  only  in  the  event  of  his  death  by  a  ])res- 
ent  disorder;  and  delivered  to  the  person  who  is  the  subject 
of  the  donation. ^^'^  In  order  to  sustain  a  gift  of  this  nature 
three  essential  attributes  must  concur. 

1.  The  gift  must  be  made  in  view  of  approaching  death, 
in  peril  of  death,  or  it  will  not  be  supported.  When  it  ap- 
pears that  the  donation  was  made  whilst  the  donor  was  ill, 
and  only  a  few  days  or  weeks  before  his  death,  it  will  be 
presumed  that  the  gift  was  made  in  contemplation  of  death, 
and  in  the  donor's  last  sickness. ^^^ 

2.  Although  it  is  an  essential  incident  that  the  donation 
should  be  subject  to  the  condition  that  if  the  donor  live  it 
shall  be  returned  to  him,  yet  this  condition  need  not  be  ex- 
pressed; it  n^ay  be  implied.  The  gift  being  made  in  con- 
templation of  death,  there  is,  it  would  seem,  an  implied  con- 
dition that  it  shall  be  held  only  on  the  happening  of  that 
event.  It  is,  however,  a  question  of  fact,  whether  all  the 
circumstances  attending  the  transaction  being  considered, 
it  was  conditional  or  unconditional ;  if  the  latter,  it  is  not  a 
donatio  mortis  causa.^'^^ 

3.  The  general  rule  is,  that  to  sustain  the  gift  there  must 
be  an  actual  delivery  of  the  thing  to  the  donee  himself,  or 
to  some  other  person  for  his  use.  A  delivery  to  the  wife  of 
the  donor,  for  the  use  of  a  third  person  is  sufficient.^'^*  The 
possession  must  be  transferred  in  point  of  fact,  but  whether 
the  delivery  be  by  the  hand  of  the  donor,  or  only  by  his  di- 
rection, is  not  material.  A  delivery  to  one  as  agent  for  the 
giver  is  not  sufticient.^'^®  So  where  the  donor  had  written 
upon  sundry  parcels  the  names  of  the  persons  for  whom 

175  1  Williams,  Ex'rs,  686;  Keyl  v.  Westerhaus,  42  Mo.  App.  49; 
Brandon  v.  Dawson,  51  Mo.  App.  237 :  Gartside  v.  Pahlman,  45  Mo. 
Apj).  160 ;  Tye  v.  Tye,  8S  Mo.  App.  330. 

176  Foley  V.  Harrison,  233  Mo.  460,  136  S.  W.  354. 

177  Foley  V.  Harrison,  233  Mo.  460.  13G  S.  W.  354. 

178  Bloomer  v.  Bloomer,  2  Bradf.  Sur.  (N.  T.)  339:  Dunn  v.  German- 
American  Bank,  109  Mo.  90,  18  S.  W.  1139;  Tygard  v.  McComb,  54 
Mo.  Ajtp.  85. 

i7»Godard  v.  Conrad,  125  Mo.  App,  165,  101  S.  W.  IIOS. 


202  executor's  right  to  assets  §  203 

the}'  were  intended,  and  requested  his  son  to  see  the  parcels 
delivered ;  as  there  was  no  actual  delivery,  it  was  held  not  a 
valid  gift.  So  where  A.  had  money  in  a  bank  on  deposit, 
and  on  his  death-bed  drew  three  checks  for  $1,000  each  in 
favor  of  certain  three  of  his  children,  and  handed  them  to 
F.,  saying:  "If  I  die,  deliver  these  checks  to  the  persons  in 
whose  favor  they  are  drawn ;  but  if  I  get  well,  hand  them 
back  to  me."  A.  died  soon  afterward ;  held  that  there  was 
no  delivery  of  the  checks  to  the  donees;  that  F.  was  the 
agent  of  the  donor,  and  not  of  the  donees,  and  that  the  gift 
failed  for  want  of  delivery. ^^^  So  when  the  delivery  is  to 
the  donee  as  a  bailee. ^^^ 

When  the  nature  of  the  thing  will  not  admit  of  a  corpo- 
real delivery,  the  gift  will  pass  by  a  delivery  of  the  means 
of  coming  at  the  possession,  or  making  use  of  a  thing  given. 
Thus  the  delivery  of  the  key  of  a  trunk  is  a  delivery  of  the 
trunk  and  its  contents,  and  the  delivery  of  a  key  to  a  store 
or  warehouse  in  which  goods  are  kept  is  a  delivery  of  the 
goods,  etc.  The  true  question  is,  has  the  donor  parted  with 
his  dominion  over  the  property?  Such  a  gift  does  not  re- 
quire the  consent  of  the  personal  representative  to  give  it 
effect.  It  is  liable,  however,  to  the  debts  of  the  testator  up- 
on deficiency  of  assets.  A  gift  of  this  nature  is  revocable 
at  the  option  of  the  donor,  and  without  the  consent  of  the 
donee,  whether  the  donor  recovers  or  not.  But  a  will  does 
not  revoke  it,  because  a  will  does  not  speak  until  the  testa- 
tor's death,  and  at  that  moment  the  gift,  from  its  very  na- 
ture, has  become  absolute.^^-  Property  conveyed  to  the 
wife,  but  paid  for  by  the  husband,  is  prima  facie  a  gift  from 
him  to  her,^*^  and  so  is  a  note  made  payable  to  her  by  his 
direction.     And  gifts  from  husband  to  wife  will  be  upheld 

180  Walter  v.  Ford,  74  Mo.  195,  41  Am.  Rep.  312;  Dunn  v.  German- 
American  Bank,  109  Mo.  90,  IS  S.  W.  1139. 

i^iMcCord's  Adm'r  v.  McCord,  77  Mo.  IGG,  46  Am.  Rep.  9;  City 
of  Kansas  v.  Hannibal  &  St.  J.  R.  Co.,  77  Mo.  ISO;  Tygard  v.  Mc- 
Comb,  54  Mo.  App.  85;  Tomlinson  v.  Ellison,  104  Mo.  105,  IG  S.  \V. 
201 ;  Brandon  v.  Dawson,  51  Mo.  App.  237 ;  Bieber's  Adm'r  v.  Boeck- 
mann.  70  Mo.  App.  503;  Gartside  v.  Pablman.  45  Mo.  App.  IGO. 

182  Mercliant  v.  Merchant,  2  Bradf.  Sur.  (N.  Y.)  432;  Foley  v.  Har- 
rison, 233  Mo.  460,  136  «.  W.  354. 

183  Pitkin  V.  Mott,  56  Mo.  App.  401;  First  Nat.  Bank  of  Ft.  Scott 
V.  Simpson,  152  Mo.  6.38,  54  S.  W.  50G;  Bieber's  Adm'r  v.  Boeck- 
maun,  70  Mo.  App.  503. 


§  203  executor's  eight  to  assets  203 

and  enforced  in  equity  where  all  the  necessary  conditions  to 
their  validity  have  been  performed.^**  Where  a  gift  is  com- 
plete the  failure  of  the  donee  to  do  what  the  donor  expected 
to  induce  him  to  do  by  the  gift  would  not  defeat  the  gift.^^^ 
Neither  does  a  will  made  afterward  and  bequeathing  all  the 
donor's  proi)erty  to  anolher.^^^ 

184  Thomas  v.  Tlioiiias,  107  Mo.  4r,0,  18  S.  W.  27. 

185  Blatz  V.  Lester,  'A  Mo.   App.  28:',. 

188  Hoehn  v.  Struttmann,  71  Mo.  App.  399. 


204  INVENTOBY   AND   APPRAISEMENT  §  204 

CHAPTER  XVII 

OF  THE  INVENTORY  AND  APPRAISEMENT 

§  204.  The  inventory — When  and  how  m.ide. 

205.  Same — Certificate  of  witnesses. 

200.  An  inventory  is  a  list,  etc. 

207.  Same — To  include  debts  and  other  claims. 

20S.  Same — Property  allowed  the  widow. 

209.  The  appraisement — When  and  how  made. 

210.  Additional  inventory  and  appraisement. 

211.  Allowance  to  widow. 

212.  Same — Supplying  deficiency. 

213.  Allowance  to  minor  children  and  widower. 

214.  Articles  taken  by  widow  to  be  listed. 

§  204.  The  Inventory— When  and  How  Made. — At  com- 
mon law  an  executor  derived  title  from  the  will,  and  could 
do  all  the  acts  incident  to  the  office,  except  sue,  before  tak- 
ing out  letters,  but  an  administrator  derived  title  from  the 
appointment  of  the  court,  and  could  not  dispose  of  the  as- 
sets before  that  time,  but  his  appointment  would  by  fic- 
tion relate  back  and  validate  acts  done  in  the  interest  of 
the  estate  and  prevent  injustice.  The  true  theory  is  that 
at  a  man's  death  his  property  is  subject  to  administration 
under  the  law,  and  whatever  right  or  title  the  personal  rep- 
resentative has  to  it,  is  simply  as  a  trustee  for  creditors 
and  distributees,  and  not  for  his  own  advantage,  and  there- 
fore his  title  is  dependent  upon  his  qualification  as  execu- 
tor or  administrator.^  After  duly  qualifying,  the  executor 
or  administrator  may  perform  certain  acts  necessary  for 
the  preservation  or  protection  of  the  property  of  the  estate 
without  an  order  of  court, ^  and  he  or  any  other  person 
might  do  the  same  thing,  before  letters  have  been  granted, 
without  incurring  liability  therefor  as  a  wrongdoer,  but  in 
all  such  cases  the  person  so  interfering  does  so  at  his  peril, 
and  will  be  held  to  a  strict  accountability.  Immediately 
after  the  grant  of  letters  the  executor  or  administrator  must 
collect  and  take  into  possession  the  goods,  chattels,  money, 
books,  papers  and  evidences  of  debt,  or  of  the  title  to  any 

1  Stagg  V.  Green,  47  Mo.  500 ;  McCracken  v.  McCaslin,  50  Mo. 
App.  85 ;   McPike  v.  McPike,  111  Mo.  216,  20  S.  W.  12. 

^  Rev.  St.  1909,  §  109 ;  Powell  v.  Powell,  23  Mo.  App.  365 ;  Mer- 
ritfs  Estate  v.  :Merritt,  62  Mo.  150;  Bambrick  v.  Webster  Groves 
Presbyterian  Church  Ass'n,  53  Mo.  App.  225. 


§  204  INVENTORY    AND   APPRAISEMENT  205 

real  or  personal  estate,  except  the  property  reserved  as  the 
absolute  property  of  the  widow.'  He  must  make  an  in- 
ventory of  all  the  real  and  personal  estate  of  the  deceased, 
describing  the  quantity,  situation  and  title  of  the  real  es- 
tate, also  books  and  papers,  the  debts  due  or  to  become 
due  to  the  deceased,  the  names  of  debtors,  the  date  of  the 
contract,  the  amount  of  interest  then  due  thereon,  the  rate 
of  interest  and  such  further  description  as  renders  it  a  per- 
fect inventory  of  the  estate.*  But  he  is  not  permitted  to 
open  or  examine  and  inventory  the  papers  and  effects  of 
the  deceased  without  the  aid  and  presence  of  two  witnesses, 
to  be  appointed  by  the  court  (or  clerk  in  vacation)  at  the 
time  of  granting  letters  on  the  estate,  under  penalty  of 
forfeiting  to  those  entitled  to  the  estate  a  sum  not  exceed- 
ing five  thousand  dollars,  to' be  recovered  in  the  circuit 
court.^  It  is  enacted  by  statute  that  at  the  time  of  appoint- 
ing an  administrator  or  granting  letters  testamentary  to  an 
executor,  the  court,  or  clerk  in  vacation,  shall  name  two 
respectable  householders  of  the  vicinity  of  the  abode  of  the 
deceased,  who  are  disinterested  and  of  no  kin  to  the  admin- 
istrator or  executor,  as  witnesses,  to  accompany  and  aid  the 
administrator  or  executor  in  opening  and  examining  the 
papers,  money  and  other  property  of  the  deceased,  and  in 
making  an  inventory  thereof;  and  if  they  fail  to  attend, 
the  court  or  clerk  shall  appoint  others  in  their  stead,  so 
that  two  witnesses  shall  be  present  to  attend  the  proceed- 
ing before  it  shall  be  lawful  for  any  executor  or  adminis- 
trator to  open  or  examine  such  papers,  money  or  other 
property,  by  virtue  of  his  appointment."  The  appointment 
of  the  witnesses  should  be  made  in  writing  and  memoran- 
dum thereof  entered  of  record  in  the  order  book  of  the 
court. 

Form  for  Appointing  Witnesses 

State  of  Missouri,     ) 

County  of  .  f 

To  E.  F.  and  G.  H.: 

You  are  notified  that  you  were  this  day  appointed  as  \vltnesses  to 
accompany  and  aid  J.  D.,  administrator  (or  executor)  of  the  estate  of 

3  Rev.  St.  1000,  §  64 ;  Eisiminger  v.  Stanton.  129  Mo.  App.  403,  107 
S.  W.  400;    Haynes  v.  Carpenter.  86  Mo.  App.  .30. 

4  Rev.  St.  1909,  §  05 ;  McCarty  v.  Frazer,  62  Mo.  203 ;  Lewis  v. 
Carson,  93  Mo.  5S7,  3  S.  W,  4S3,  6  S.  W,  365 ;  Hi  lor  v.  Cox,  210  Mo. 
<)96,  109  S.  W.  670. 

5  Rev.  St.  1900.  §  69.  «  Rev.  St.  1909.  §  68. 


206  INVENTORY    AND    APPRAISEMENT  §  204 

R.  R.,  deceased,  in  opening  and  examining  the  papers,  money  and 
otlier  property  of  the  deceased,  and  in  making  an  inventory  thereof. 

Given  nnder  my  hand,  this day  of ,  19 — . 

J.  11.,  ,  (Style  of  office). 

The  Entry  Appointing  IVitncsscs 

Estate  of  ] 

R.  K..  deceased.     J 

J.  D.,  having  been  appointed  administrator  of  said  estate,  E.  F., 
and  G.  H.  are  hereby  apiiointed  witnesses  to  accompany  and  aid  him 
in  opening  and  examining  the  papers,  money  and  otlier  property  of 
the  deceased,  and  in  making  an  inventory  tliereof. 

Form  of  Inventory 

An  inventory  of  the  real  and  personal  estate  of  R.  R.,  late  of  the 

county  of  ,  deceased,  taken  and  made  by  J.  D.,  executor  (or 

administrator)  of  said  deceased,  and  E.  F.  and  G.  H.,  witnesses  ap- 
pointed by  the  court  (or  clerk  of  the  court  in  vacation),  to 

aid  in  making  the  same. 

REAL    ESTATE    OF    DECEDENT 

Situate  in  the  county  of ,  state  of  Missouri: 

Lot  No.  Five  (5)  in  block  lilighteen  (18),  in  the  city  of ,  con- 
veyed to  R.  R.,  deceased,  by  J.  N.,  by  warranty  deed  dated  • 

day  of ,  19—. 

The  southwest   quarter   of   Section   10,   Township   ,    Range 

,  IGO  acres,  conveyed  to  R.  R.,  deceased,  by  O.  R.,  by  quit- 
claim deed,  dated  day  of ,  19 — . 

PERSONAL    ESTATE 

Goods  and  chattels  as  follows: 

One  bay  saddle-horse,  six  year.s  old. 

One  saddle.  , 

One  russet  bridle. 

One  two-horse  carriage. 
Notes  as  follows: 

John  Jones'  note  for  $600,  dated  June  1,  1SS9,  payable  six: 
months  after  date $G0O  00 

Interest  now  due 47  00 

[Etc.,  etc.,  etc.] 
Account  as  per  books: 

John  Jones,  for  goods $G5  70 

"William  Bay,  for  goods 40  54 

[Etc.,  etc.] 

RECAPITULATION 

Goods  and  chattels  as  per  appraisement .$ 

Notes  and  interest • 

Accounts   ■ 

Stocks  

Cash    

Total  personal  estate $ 

C.  D., of  A.  B.,  Deceased. 


§  205  INVENTORY   AND   APPRAISEMENT  207 

The  executor  or  adniini-tralor  must  annex  to  the  in- 
ventory an  afifidavit  stating  that  it  is  a  full  inventory  and 
description  of  all  the  money,  goods,  chattels,  and  estate, 
real  and  personal,  books,  papers,  evidences  of  debt,  and 
of  title  of  the  deceased,  and  of  all  debts  due  and  becoming- 
due,  so  far  as  he  can  ascertain  them,  except  the  property 
reserved  as  the  absolute  property  of  the  widow  (or  chil- 
dren), and  that  he  was  not  indebted  or  bound  in  any  con- 
tract to  the  deceased  at  the  time  of  his  death,  except  as 
stated  in  the  inventory.'^ 

Form  of  Affidarit 
State  of  Missouri,     1 

County  of  .  j 

Ou  this day  of ,  in  the  year  of  our  Lord  19 — ,  before 

rue,  of  the  ,  within  and  for  the  county  aforesaid,  per- 
sonally appeared  C.  D.,  administrator  of  A.  B.,  late  of  the  county  of 

,  deceased,  who.  being  by  nie  duly  sworn,  on  his  oath  says  that 

the  foregoing  is  a  full  inventory  and  description  of  all  the  money, 
goods,  chattels  and  estate,  real  and  i)ersonal,  books,  papers,  evideut-es 
of  del)t  and  of  title  of  the  deceased,  and  of  all  debts  due  or  becom- 
ing due  so  far  as  he  can  ascertain  them,  except  the  property  re- 
s<'rvcd  as  the  absolute  property  of  the  widow,  and  that  he  was  not 
indebted  or  bound  in  any  contract  to  the  deceased  at  the  time  of  his 
death,  except  as  stated  in  the  inventory.  C.  D. 

Sworn  to  and  subscribed  before  me  at  tlie  county  aforesaid  this 
day  of ,  A.  D.  19—.  E.  F. 

§  205.  Same — Certificate  of  Witnesses. — The  statute 
does  not  expressly  recjuire  that  the  witnesses  should  cer- 
tifv  or  make  any  return  to  the  court  of  their  action  in  the 
premises,  but  as  their  presence  and  aid  is  essential  to  the 
authority  of  the  executor  or  administrator,  as  a  matter  of 
prudence  they  should  certify  to  the  fact  of  their  presence 
and  assistance  in  making  the  inventory.  Their  certificate 
may  be  in  the  following  form : 

Certificate  of  Witnesses 

We.  the  undersigned  householders  of  the  vicinity  of  the  last  abode 
of  K.  K.,  deceased,  disintex'ested  and  not  of  kin  to  J.  D.,  the  executor 

of  said  R.  R.,  deceased,  appointed  by  the of  the  probate  court. 

as  witnesses  to  accompany  and  aid  said  executor  in  opening  and  ex- 
amining the  papers,  money  and  otlier  property  of  the  deceased,  and 

in  making  an  inventory  thereof,  certify  that  we  did,  on  the  

day  of  ,  19 — ,  perform  the  duty  required  of  us,  and  that  the 

7  Rev.  St.  1909,  §  GG;    McCarty  v.  Frazer,  G2  Mo.  2G3. 


208  INVENTORY    AND    APPRAISEMENT  §  206 

foregoing  Is  a  full  and  complete  inventory  of  the  property  and  effects 
of  the  said  R.  R.,  deceased,  so  far  as  the  same  came  to  our  knowl- 
edge. 

Given  under  our  hands,  this day  of ,  19 — . 

E.  F., 

G.  H., 

Witnesses. 

§  206.  An  Inventory  is  a  list,  schedule  or  enumeration 
in  writing,  containing  (article  by  article)  a  description  of  all 
the  real  and  personal  estate,  rights  and  credits  of  the  dece- 
dent.^ We  have  endeavored  to  point  out  briefly  in  chapter 
XVI,  what  property  of  the  decedent  goes  to  his  personal  rep- 
resentative, and  in  doing  so  have  signified  what  property 
must  be  inventoried,  for,  in  general,  everything  that  goes 
to  the  representative  in  right  of  the  decedent  must  be  placed 
upon  the  inventory.  The  general  rule,  as  to  what  are  re- 
garded as  assets  in  the  hands  of  the  personal  representative, 
is  stated  in  a  book  of  authority,  thus:  "All  those  goods 
and  chattels,  actions  and  commodities,  which  were  of  the 
deceased  in  right  of  action  or  possession  as  his  own,  and 
so  continued  to  the  time  of  his  death,  and  which  after  his 
death  the  executor  or  administrator  doth  get  into  his  hands 
as  duly  belonging  to  him  in  the  right  of  his  executorship 
or  administratorship,  and  all  such  things  as  do  come  to 
the  administrator  in  lieu  of  or  by  reason  of  that,  and  noth- 
ing else,  shall  be  said  to  be  assets  in  the  hands  of  the  ex- 
ecutor or  administrator  to  make  him  chargeable  to  a  cred- 
itor or  legatee."  ^  Whether  the  decedent's  title  to  the 
property  be  perfect  or  not,  it  should  be  mentioned,  as  the 
executor  or  administrator  cannot  be  the  judge  of  title.  All 
real  property  to  which  the  decedent  had  an  apparent  claim 
should  be  included  in  the  list,  and  the  nature  of  such  claim 
should  be  stated.  Where  the  interest  of  the  deceased  in  real 
property  determines  upon  his  death  the  property  should 
not  be  included  in  the  inventory  of  his  personal  representa- 
tive, and  this  is  true  even  though  the  widow  is  entitled  to 
dower  therein.^''  It  is  also  the  duty  of  the  administrator 
or  executor  to  inventory  property  fraudulently  concealed, 
but  not  property  fraudulently  conveyed. ^^     Property  spe- 

8  2  Bouv.  Inst.  475. 

»  Shep.  Touchstone,  496 ;   Blount  v.  Harney,  43  Mo.  App.  647. 

10  Dameron  v.  Lanyon,  234  Mo.  627,  138  S.  W.  1. 

11  Andruss  v.  Doolittle,  11  Conn.  283;  Hayes  v.  Fry,  110  Mo.  App. 
20,  83  S.  W.  772. 


§  207  INVENTORY    AND    APPRAISEMENT  209 

cially  bequeathed,  and  debts  due  from  the  executor  or  ad- 
ministrator, should  he  inventoried.^^  But  such  debts  are 
not  to  be  treated  as  cash  in  his  hands,  but  only  as  assets,'"' 
unless  he  is  solvent,  in  which  case  it  will  be  treated  as  so 
much  cash.^'*  And  naming  a  debtor  as  executor  does  not 
release  the  debt,  but  the  executor  must  account  for  it  as 
part  of  the  estate.  Debts  secured  by  mortgage  on  real 
estate  must  be  inventoried,  and  the  debt  and  mortgaged 
premises  are  personal  assets,  and  when  the  debt  is  paid 
the  executor  or  administrator  must  release  the  mortgage. ^'^ 
This  applies  as  well  to  debts  which  are  secured  by  deed 
of  trust  upon  real  property. 

§  207.  When  Debts  or  Claims  for  Money  are  listed  the 
amount  and  nature  of  the  debt,  rate  of  interest,  amount  of 
interest  due,  and  the  name  of  the  debtor  should  be  stated  ; 
and  if  the  demand  is  doubtful  or  desperate  the  fact  should 
be  stated.  The  executor  or  administrator  will  be  obliged 
to  show  good  cause  for  not  collecting  the  debts  mentioned 
to  be  due,  unless  he  had  the  precaution  to  note  them  in 
the  inventory  as  desperate  or  doubtful. ^*^  If  he  marks  a 
debt  doubtful  or  desperate,  it  will  devolve  on  the  creditor 
or  distributee  to  show  that  the  same  was  good  and  might 
have  been  collected.  Formerly,  if  a  person  administered 
without  making  an  inventory,  the  law  supposed  him  to  have 
assets  for  the  payment  of  all  debts  and  legacies,  unless  he 
repelled  the  presumption.  But  if  he  made  an  inventory  he 
was  not  presumed  to  have  more  efifects  than  are  comprised 
in  it,  and  the  proof  of  any  omission  was  thrown  on  the 
opposite  party.^^  Whether  the  presumption  of  assets, 
where  no  inventory  is  made,  would  be  held  to  be  the  law 
here  is  perhaps  an  open  question.  The  statute  requiring 
the  inventory  would  lend  many  presumptions  against  the 
executor  or  administrator  should  he  fail  to  comply  with 
the  law  in  this  respect.  Indeed,  the  failure  to  make  a  com- 
plete inventory  is  a  breach  of  the  conditions  of  the  bond 

12  Eaton  V.  Walsh,  -lli  Mo.  2712;  Rov.  St.  10(».  §i5  107.  108;  Mc- 
Carty  v.  Frazer,  62  Mo.  2G;i ;  Wilson  v.  Ruthraufl:,  82  Mo.  Apy.  4o5 ; 
Young  V.  Thrasher,  48  Mo.  App.  327. 

13  Young  V.  Thrasher.  48  Mo.  App.  327. 

14  Wilson  V.  Kuthrauff,  82  Mo.  App.  435. 
IB  Dodge  V.  Beeler,  12  Kan.  520. 

16  2  Kent's    Com.  415. 

17  Lawrence  v.  Ileister,  3  liar.  &  J.  (Md.)  373. 

Kel.Mo.P.G.— 14 


210  INVENTORY  AND   APPRAISEMENT  §  208 

of  the  executor  or  administrator/^  It  is  the  general  rule, 
that  the  personal  representative  cannot  be  charged  with 
an}'  other  goods  or  assets  than  those  which  come  into  his 
hands. 

§  208.  Same — Property  Allowed  the  Widow. — The  ob- 
ject of  an  inventory  is  to  exhibit  in  a  convenient  form  to 
all  persons  interested  in  the  estate  of  the  deceased,  that 
portion  of  the  personal  property  which  is  assets  in  the 
hands  of  the  executor  or  administrator,  for  the  payment 
of  debts  and  legacies.  The  statute  seems  to  contemplate 
the  omission  from  the  inventory  of  all  the  property  allowed 
to  the  widow,  as  her  absolute  property,^®  yet  it  is  better 
practice  to  include  in  the  inventory  all  personal  property 
of  the  deceased.^"  When  this  is  done  the  administrator 
should,  after  the  inventory  and  appraisement  be  made,  de- 
liver to  the  widow  the  property  to  which  she  is  entitled  and 
take  her  receipt  for  it.  His  action,  if  he  desires  to  protect 
himself  from  future  attack  on  the  part  of  the  heirs  and 
creditors,  should  be  taken  only  under  order  of  court.  If 
he  should  without  first  obtaining  an  order  from  court  al- 
low to  the  widow  her  absolute  property,  this  action  should 
be  placed  in  written  form  and  submitted  to  the  court  for 
its  approval. 

§  209.  The  Appraisement,  When  and  How  Made. — After 
having  collected  and  inventoried  the  personal  estate,  the 
executor  or  administrator  must  cause  it  to  be  appraised 
by  three  disinterested  householders  of  the  county,  who, 
before  entering  on  their  duties,  must  make  an  affidavit  that 
they  are  not  interested,  nor  of  kin  to  any  person  interested 
in  the  estate,  as  heir  or  devisee,  and  that  they  will,  to  the 
best  of  their  ability,  view  and  appraise  the  personal  estate 
to  them  produced.  The  executor  or  administrator  may  ad- 
minister all  the  oaths  and  affirmations  to  appraisers  and 
witnesses  in  taking  the  inventory  and  appraisement.-^ 

The  executor  or  administrator  selects  the  appraisers.  He 
should  be  careful  to  select  men  of  integrity  and  judgment, 
who  would  be  likely  to  be  impartial,  and,  of  course,  they 

18  Sherwood's  Adm'r  v.  Hill,  25  Mo.  391. 

19  Rev.  St.  1909,  §  66. 

2  0  Griswold  v.  Mattix,  21  Mo.  App,  282;  Glenn  v.  Gunn,  88  Mo. 
App.  42.3. 

21  Rev.  St.  1909,  §§  75,  76,  77. 


§  209  INVENTORY   AND  APPRAISEMENT  211 

must  not  be  interested,  nor  of  kin  to  anybody  that  is  inter- 
ested in  the  estate,  as  heir  or  devisee.  The  persons  ap- 
pointed as  witnesses  need  not  necessarily  be  chosen  as  ap- 
praisers, but  as  they  are  probably  competent  and  qualified 
to  act,  it  would  be  more  convenient  and  less  expensive  to 
make  them,  iu  connection  with  a  third  person,  the  apprais- 
ers, and  then  make  the  appraisement  at  the  same  time  the 
inventory  is  taken.  When  an  article  of  property  is  inven- 
toried, place  it  on  the  appraisement  list,  and  affix  the  value 
of  it  and  thus  proceed  with  the  inventory  and  appraisement 
until  both  are  completed. 

The  appraisers  must  view  and  appraise  the  property  and 
make  a  list  thereof,  specifying  each  article  appraised,  its 
value  and  the  total  amount  of  the  appraisement,  which 
must  be  signed  by  two  or  more  of  the  appraisers.^^ 

The  inventory,  appraisement  and  affidavits  must  be  filed 

in  the  office  of  the  clerk  of  the  probte  court,  within  thirty 

days  after  letters  are  granted,  and  must  be  duly  recorded 

by  the  clerk  in  a  well  bound  book,  to  be  by  him  kept  for 

/<y/ 7 /that  purpose.-^ 

^J  _^      Appraisers    and   witnesses    are    each    entitled    to   receive 

c^'^  from  the  estate  one  dollar  per  day  for  their  services. 

Form  for  Appraisement 

In  the  Matter  of  the  Appraisement"^ 

of  the  Personal  Property  of  y 

R.  R.,  Deceased.  J 

And  now,  on  this  day,  comes and  returns  to  the  court  the 

appraisement  bill  of  said  estate,  the  appraisers'  oath  annexed  there- 
to, as  follows: 

OATH    OF    APPRAISERS 

State  of  Missouri,     | 

County  of  .  \ 

E.  G.,  G.  H.,  and  J.  J.,  being  appointed  to  appraise  the  personal 
estate  of  R.  R..  deceased,  before  entering  on  tli-ir  duties,  make  oath. 
and  say  that  they  are  not  interested,  nor  kin  to  any  person  inter- 
ested, in  said  estate  as  heir  or  devisee,  and  that  they  will,  to  the 
best  of  their  ability,  view  and  appraise  all  the  personal  estate  of 

said  R.  R,,  deceased. "| 

I  Appraisers, 

J 

Subscribed  and  sworn  before  me,  this  day  of  A.  D, 

19—. 


2  2  Rev.  St.  1000,  §  77. 

23  Rev.  St.  rJO'J,  §  7S,  as  amended  by  Laws  1011,  p.  7S. 


212  INVENTORY   AND   APPRAISEMENT  §  209 

appraisers'  estimate  for  widow 
We,  the  undersigned  appraisers,  appointed  by  the  judge  of  the 
probate  court  of  county  to  appraise  and  value  the  goods,  chat- 
tels and  personal  estate  of  R.  R.,  deceased,  do  hereby  make  and 
certify  to  said  court  the  following  estimate  of  the  value  of  each 
article  of  specific  property  allowed  by  law  to  the  widow,  for  herself 
and  family,  to- wit: 

Family   Bible   and   other    books 

Household,  kitchen  and  table  furniture 

Provisions  on  hand 

Given  under  our  hands. 

.  Appraisers. 


Appraisement  bill  of  goods,  chattels  and  personal  estate  of  said 
R.  R..  deceased,  so  far  as  the  same  have  come  to  our  sight  and 
knowledge,  which  appraisement  has  been  made  by  us  by  virtue  of 
the  law  of  the  state  of  Missouri,  we  having  been  first  duly  sworn 
as  required  by  law. 


Articles 


Value 


Administrator. 


Certified  by  us  this day  of ,  A.  D.  19—. 

—  ^Appraisers. 


Witnesses:  -I 

We,  the  appraisers  above  named,  do  certify  that  we  have  attended 
and  served  day —  each  in  appraising  the  estate  of  said  de- 
ceased.   1 

L  Appraisers. 

J 

§  210.  Same — Additional  Inventory  and  Appraisement. 
— If  after  making  the  first  inventory,  any  other  real  or  per- 
sonal estate  come  to  his  knowledge  or  possession,  he  must 
file  an  additional  inventory,^*  and  cause  similar  appraise- 
ments to  be  made  and  filed  of  all  such  personal  estate  com- 
ing into  his  possession  after  the  first  appraisement. =^^  And 
the  court,  on  application  of  any  person  interested,  may  com- 

24  Rev.  St.  1000,  §  07 ;  Walter  v.  Ford,  74  Mo.  195,  4.1  Am.  Rep. 
312. 

2  5  Rev.  St.  1909,  §  80. 


§  211  INVENTORY    AND    APPRAISEMENT  213 

pel  the  executor  or  administrator  to  inventory  any  part 
of  the  estate  which  may  have  been  omitted  from  the  for- 
mer inventory. ^°  Inventories  and  appraisements  may  be 
given  in  evidence,  but  are  not  conclusive  for  or  against  the 
executor  or  administrator ;  other  evidence  may  be  intro- 
duced to  vary  their  effect.  It  has  been  held  in  Missouri 
that  an  inventory  listing  real  estate  may  be  introduced  as 
secondary  evidence  of  the  title  of  the  deceased,  the  orig- 
inal muniments  having  been  lost  or  destroyed. ^^  Where 
there  are  two  or  more  executors  or  administrators  on  the 
same  estate,  any  one,  on  failure  of  the  others,  may  make 
and  return  the  inventory  and  appraisement, 

§  211.  Allowance  to  Widow. — In  addition  to  her  dower 
interest  in  real  estate  the  widow  is  allowed  to  keep,  as  her 
absolute  property,  a  family  Bible  and  other  books,  not  to 
exceed  $200;  all  the  wearing  apparel  of  the  family;  her 
wheel,  loom,  sewing  machine'®  and  other  implements  of 
industry ;  all  yarns,  cloth  and  clothing  made  up  in  the 
family  for  their  own  use ;  all  grain,  meat,  vegetables,  gro- 
ceries on  hand  and  provided  and  necessary  for  the  subsist- 
ence of  the  widow  and  her  family  for  twelve  months ;  her 
household,  kitchen  and  table  furniture,  including  beds,  bed- 
steads and  bedding,  not  to  exceed  the  value  of  $500.-'*  This 
allowance  to  the  widow  is  not  affected  by  the  debts  of  the 
husband  and  cannot  be  defeated  by  devising  the  property 
to  others.^"  If  it  is  intended  in  drawing  a  will  to  devise 
other  property  to  the  widow  in  lieu  of  that  above  enu- 
merated, such  intent  shall  be  clearly  expressed. ^^  If  the 
grain,  meat,  or  other  provisions  necessary  to  the  subsistence 
of  the  widow  and  her  family  for  twelve  months  are  not  on 
hand  at  the  time  of  making  the  inventory,  the  court  shall 
make  a  reasonable  appropriation  out  of  the  assets  of  the 
estate  to  supply  said  deficiency.^^  In  determining  what 
this  appropriation  shall  be,  the  term  "family"  as  here  used 
does  not  include  hired  help,  but  means  children  or  such 
persons  belonging  to  the  household  as  have  the  legal  or 
moral  right  to  be  fed  and  clothed  by  the  deceased  or  his 

2G  Walter  v.  Ford.  74  Mo.  105.  41  Aui.  Rop.  :;i2. 
■■i'  Hiler  v.  Cox,  210  Mo.  60("..  109  S.  W.  (17!). 
2  8  State  ex  rel.  Steers  v.  Taylor,  72  Mo.  (J56. 

2  8  Rev.  St.  1909.  §  114. 

so  (Jlenn  v.  Gunn,  88  Mo.  App.  442. 

31  Ellis  V.  Ellis,  119  Mo.  App.  63,  96  S.  W.  260. 

3  2  Rev.   St.  1909.  §  115. 


214  INVENTORY   AND   APPRAISEMENT  §  211 

widow.  It  has  been  held  that  the  widow's  married  daugh- 
ter, her  husband  and  children  are  not  to  be  considered  as 
a  part  of  the  family  within  the  meaning  of  this  section  of 
the  statute/"*^ 

In  addition  to  the  specific  personal  effects  given  to  the 
widow  as  hers  absolutely,  she  is  entitled  to  take  such  other 
personal  property  as  she  may  choose,  not  to  exceed  the  ap- 
praised value  of  $400,  for  which  she  must  give  a  receipt  to 
the  administrator  or  executor.==^  This  property  shall  in 
no  case  be  liable  for  the  payment  of  the  debts  of  the  de- 
ceased, but  if  the  widow  had  dower  in  the  personal  estate 
it  shall  be  deducted  from  such  dower  interest.^'s  She  should 
apply  for  such  property  before  it  is  distributed  or  sold,  but 
if  she  does  not  receive  it  before  it  is  sold  by  the  adminis- 
trator or  executor,  the  court  will  on  application  order  the 
money  to  be  paid  to  the  widow  at  any  time  before  it  is  paid 
out  for  debts  or  distributed. ^'^  She  may  elect  to_take  a 
child's  part  in  the  real  estate  of  deceased  under  section 
356  and  still  receive  her  $400  in  personalty."  The  right 
of  the  widow  of  the  property  thus  given  her  by  statute 
is  absolute  and  vests  immediately  upon  the  death  of  the 
husband.  She  is  entitled  to  her  allowance  although  she  may 
have  abandoned  her  husband  without  cause  and  lived  out 
of  the  state,  his  domicile  being  in  law  her  domicile.^^  If  the 
widow  die  without  receiving  the  $400  it  should  be  paid  to 
her  administrator  upon  his  application  therefor.^''  The 
statute  which  bars  demands  against  an  estate  if  not  filed 
within  two  years  after  the  granting  of  letters  does  not  ap- 
ply to  the  demand  of  widow  for  a  cash  allowance  in  lieu 
of  one  year's  support.  Application  for  this  allowance  is 
timely  if  made  within  five  years  after  the  granting  of  let- 
ters.*'' A  divorced  wife  is  not  entitled  to  the  benefit  of 
these  provisions  made  for  the  widow,  nor  is  the  widow 
unless  her  husband  was  domiciled  in  or  a  resident  of  this 
state  at  the  time  of  his  death. 

3  3  Whaley  v.  Wluiley,  50  Mo.  577. 
3  4  Rev.  St.  1909,  §  116. 
3  5  Rev.  St.  1909,  §§  117,  118. 

3G  Lamar  v.  Belcher,  154  Mo.  App.  571,  IHG  S.  W.  748. 
3  7  Hill  V.  Evans,  114  Mo.  App.  715,  91  S.  W.  1022. 
38Comerford  v.  Coulter,  82  Mo.  App.  362;    Mowser  v.  Mowser,  87 
Mo.  437. 

3  9  Hastings  v.  Myers'  Adm'r,  21  Mo.  519. 

40  In  re  Ulrici's  Estate,  145  Mo.  App.  463,  122  S.  W.  761. 


§  213  INVENTORY   AND   APPRAISEMENT  215 

While  the  allowances  above  referred  to  may  be  claimed 
by  the  widow  uiiafifected  by  the  debts  of  the  husband,  spe- 
cific perirenal  property  left  by  him  which  is  subject  to  a 
vendor's  lien  cannot  be  held  by  the  widow  free  from  the 
claims  of  the  vendor.  It  has  been  held  in  Missouri  in  a 
case  where  the  deceased  left  personal  property  including 
a  piano  part  of  the  purchase  price  of  which  was  unpaid  at 
the  time  of  his  death,  such  property  not  exceeding  in 
amount  that  allowed  to  the  widow  as  hers  absolutely,  that 
the  vendor's  rights  were  paramount  as  to  the  property  he 
had  sold." 

§  212.  Same — Supplying  Deficiency. — Where  there  is  a 
deficiency  in  the  grain,  meats,  and  provisions  allowed  to 
the  widow  as  above  stated,  she  is  entitled  to  an  appropria- 
tion out  of  the  other  personal  assets  of  the  estate.  If  there 
should  not  be  more  than  $400  worth  of  personal  estate  in 
addition  to  that  allowed  as  her  absolute  property,  she  will 
take  it  all ;  but  if  there  should  not  be  that  amount  a  de- 
ficiency cannot  be  supplied  from  the  proceeds  of  the  sale  of 
real  estate.*-  Until  the  widow's  dower  is  assigned  a  court 
may  order  such  sum  to  be  paid  to  her  out  of  the  rents  of 
real  estate  as  will  be  in  proportion  to  her  interest  in  the  real 
estate.*^ 

§  213.  Allowances  to  Minor  Children  and  Widower. — If 
there  be  children  of  deceased  under  sixteen  years  of  age, 
but  no  widow,  they  will  be  entitled  absolutely  to  the  prop- 
erty and  allowances  allowed  to  the  widow  had  she  survived 
the  husband,  and  in  case  a  widow  shall  die,  leaving  minor 
children  under  sixteen  years  of  age,  they  will  be  entitled  to 
the  same  property  and  allowances  absolutely  as  the  mother 
was  entitled  to  take  at  the  death  of  her  husband.**  This 
statute  has  been  construed  to  mean  that  if  a  father  dies, 
leaving  no  widow,  his  children  under  sixteen  years  of  age 
are  entitled  to  these  allowances  out  of  the  father's  estate ; 
and  that  if  a  widow  dies,  leaving  such  children,  they  are 
entitled  to  the  same  allowances  out  of  her  estate,  and  un- 
less the  mother  was  a  widow  at  the  time  of  her  death  her 

41  Lazonby  v.  Smitlioy,  151  .Mo.  App.  285,  131  S.  W.  70S, 
4  2  See  V.  See,  06  .Mo.  App.  500. 

43  Rev.  St.  1000.  §  2.-)7;    Gentry  v.  Gentry,  122  Mo.  202,  26  S.  W. 
1090;    Tinrher  v.  Phillips,  37  Mo.  App.  021. 
4  4  Rev.  St.  1000,  §  119. 


216  INVENTORY   AND   APPRAISEMENT  §  213 

children  are  not  entitled  to  these  allowances.*^  The  minor 
children  should  have  a  legal  guardian  to  represent  their  in- 
terests and  take  charge  of  their  allowances  and  effects. 

If  a  wife  shall  die,  testate  or  intestate,  owning  personal 
property  in  her  own  name,  in  addition  to  curtesy,  her  wid- 
ower shall  be  allowed  to  keep  as  his  absolute  property  all 
the  articles  and  property  allowed  by  law  to  the  widow  in 
the  deceased  husl3and's  property.*^  Although  the  widower 
be  not  entitled  to  curtesy  in  his  deceased  wife's  property, 
he  may  still  claim  this  allowance.*^ 

§  214.  Articles  taken  by  Widow  to  be  Listed. — We  re- 
peat that  the  property  taken  by  the  widow  or  children 
should  be  noted  in  the  inventory  or  on  a  separate  list,  and 
be  reported  to  the  court.  The  representative  need  not  take 
possession  of  it,  nor  include  it  in  the  inventory.  The  spe- 
cific articles  given  absolutely  without  limitation  or  qualifica- 
tion may  with  propriety  be  omitted  from  the  list,  or  not 
noticed,  but  books,  household,  kitchen,  table  furniture,  etc., 
provisions  on  hand,  etc.,  should  be  inventoried  and  ap- 
praised, and  set  off  to  her  to  the  amount  allowed  by  law. 

When  the  widow  is  required  to  give  a  receipt  for  prop- 
erty, it  may  be  in  the  following  form : 

List  of  Property   Taken  by  the   Widozv 

No.                    Articles  Value. 

3            One  fancy  bedstead   $  15  00 

5  One  horse  125  00 

6  One  cupboard  12  00 

7  Money  on  hand,  etc.,  etc 150  00 

$  302  00 

Received  of  J.  D.,  administrator  of  R.  R.,  my  late  husband,  three 
hundred  and  two  dollars  in  goods  and  chattels  at  the  appraised  value, 
and  money  on  hand,  as  shown  by  the  foregoing  schedule. 

July ,  19—.  RHODA  ROE,  Widow. 

We  have  heretofore  stated  that  when  it  shall  be  shown 
that  the  whole  estate  does  not  amount  to  more  than  the 
law  allows  to  the  widow,  or  minor  children  under  sixteen 
years  of  age,  no  letters  should  be  granted.*®    So  if,  after  the 

4  5  Baer  v.  Pfaff,  44  Mo.  App.  35 ;  Lewis  v.  Castello,  17  Mo.  App. 
593. 

4  6  Rev.  St.  1909,  §  120. 

4  7  Ferguson  v.  Gentry,  206  Mo.  203,  104  S.  W.  108. 

48  Ante,  §  147 ;    Glenn  v.  Gunn,  88  Mo.  App.  423. 


§  214  INVENTORY    AND   APPRAISExMENT  217 

grant  of  letters,  upon  the  return  of  the  inventory  and  ap- 
praisement, the  estate  does  not  amount  to  more  than  the 
widow  or  children  are  entitled  to  by  law,  and  there  are  no 
debts  due  to  the  estate,  or  so  small  that  they  would  not  de- 
fray the  expense  of  collection  and  administration,  the  court 
may,  at  its  discretion,  order  the  estate  to  be  delivered  to  the 
widow,  or  minor  children,  if  there  be  no  widow,  and  dis- 
pense with  any  further  administration,^"  unless  further  es- 
tate be  discovered  or  the  court  order  the  administration  to 
proceed.  She  would  not  be  invested  with  the  title  to  the 
property  unless  the  order  be  made  as  authorized  by  the 
statute.'"  This  does  not  authorize  real  estate  to  be  turned 
over  to  the  widow. '^ 

4  0  Rev.  St.  1909,  §  258. 

CO  Craslin  v.  Baker,  8  Mo.  437;    Grand  Lodge,  A.  O.  U.  W.  v.  Dister, 
77  Mo.  App.  608. 

01  Pidcock  V.  Buffam,  Gl  Mo.  .370. 


218  BECOVEBY   OF   CONCEALED,  ETC.,  ASSETS  §  215 


CHAPTER  XVIII 

RECOVERY  OF  CONCEALED,  EMBEZZLED,  OR  WRONGFULLY 
WITHHELD  ASSETS 

§  215.  Recovery  of  assets  wrongfully  withheld. 

216.  Nature  of  proceeding. 

217.  Forms  for  use  in  pleading. 

218.  Judgment  and  effect  thereof. 

§  215.     Recovery  of  Assets  Wrongfully  Withheld. — The 

statutes  of  Missouri  provide  a  means  somewhat  summary  in 
its  nature  of  bringing  quickly  into  the  course  of  administra- 
tion property  of  the  deceased  which  is  concealed,  embezzled, 
or  wrongfully  withheld.^  The  present  statutory  proceeding 
in  the  probate  court  is  the  result  of  a  gradual  amendment  and 
broadening  of  statutes  of  an  early  date  in  which  a  proceeding 
of  this  nature  was  recognized.-  Formerly  relief  was  denied 
in  this  proceeding  against  administrators  and  executors  who 
had  wrongfully  concealed,  embezzled,  or  withheld  property  of 
the  deceased,  and  it  was  confined  to  cases  of  concealment  and 
embezzlement  by  third  parties.^  Now  administrators  and  ex- 
ecutors and  assets  wrongfully  withheld,  as  well  as  those  con- 
cealed or  embezzled,  are  within  reach  of  the  remedy  provided.* 
As  a  result  of  the  successive  amendments  of  this  statute  the 
earlier  cases  construing  and  applying  it  are  no  longer  author- 
itative and  have  been  practically  overruled  by  more  recent  de- 
cisions of  our  appellate  courts.^  It  was  formerly  held  that  the 
statutory  provisions  governing  this  proceeding  permitted  a 
probate  court  to  inquire  into  only  the  good  faith  of  defendant's 
claim  of  title,  and  if  such  was  found  to  be  merely  colorable 
compel  a  surrender  of  the  property ;  but  if  his  claim  was 
founded  on  a  substantial  basis  of  legal  right  the  controversy 
should  be  settled  in  a  court  of  general  jurisdiction  rather  than 

1  Rev.  St.  1909,  §§  70-71  (inclusive). 

2  Rev.  St.  1845,  p.  74,  c.  3,  art.  2,  §  9  et  seq. ;  1  Rev.  St.  1855,  p. 
130,  c.  2,  art.  2,  §  7  et  seq. 

3  Cardwell  v.  Stuart,  G7  Mo.  App.  Gl ;  In  re  Huffman's  Estate, 
132  Mo.  App.  44,  111  S.  W.  848. 

4  Rev.   St.  1909,  §§  70,  74. 

5  In  re  Clinton's  Estate,  223  Mo.  371,  123  S.  W.  1 ;  Tygard  v.  Fa- 
lor,  163  Mo.  234,  63  S.  W.  672 ;  In  re  Huffman's  Estate,  132  Mo.  App. 
44,  111  S.  W.  848. 


§  215  RECOVERY   OF  CONCEALED,  ETC.,  ASSETS  219 

a  probate  court. ^  It  was  held  that  the  inriuiry  must  be  con- 
tined  to  the  good  faith  of  defendant's  claim  of  title  and  that 
the  validity  of  his  claim  from  a  legal  standj)oint  could  not  be 
adjudicated  in  the  probate  court.  This  interpretation  of  the 
statute  proceeded  upon  the  assumption  that  the  object  of  the 
statute  was  merely  to  facilitate  the  discovery  of  hidden  assets 
preliminary  to  an  action  in  a  court  of  general  jurisdiction  to 
recover  them.  In  later  decisions  of  both  of  the  Courts  of  Ap- 
peals and  the  Supreme  Court  of  Missouri  it  has  been  definitely 
held  that  the  legislation  providing  for  this  proceeding  was  not 
enacted  to  provide  merely  a  method  of  investigating  the  good 
faith  of  a  person  who  retains  assets,  but  to  provide  also  a 
remedy  by  which  the  detained  assets  would  be  brought  quickly 
into  the  course  of  administration.'^  These  decisions  also  hold 
that  as  the  statutes  provide  for  submission  of  the  controverted 
issues  to  a  jury,  that  the  title  to  property  could  be  determined 
in  this  proceeding,  that  the  proceeding  is  one  for  the  recovery 
as  well  as  the  discovery  of  assets  belonging  to  the  estate.^  The 
effect  of  these  decisions  has  been  to  broaden  the  scope  of  the 
inquiry  and  to  greatly  increase  the  power  and  jurisdiction  of 
the  probate  court  over  assets  belonging  to  the  estate  which 
either  the  executor  or  administrator  has  refused  to  inventory 
or  which  are  wrongfully  retained  by  other  persons.  It  is  pos- 
sibly well  to  note  that  the  statutes  of  Maryland  and  the  deci- 
sions of  Maryland  courts  based  upon  those  statutes  have  been 
generally  relied  on  by  our  courts  in  the  late  constructions  of 
the  Missouri  statute. °  The  states  of  New  York,  Maine,  Iowa, 
Michigan,  Wisconsin,  Minnesota,  Connecticut,  Kansas  and 
Oregon  have  statutes  which  permit  only  the  discovery  and  not 
the  recovery  of  concealed  or  wrongfully  withheld  assets  of  the 
deceased  in  a  probate  court  proceeding,  and  hence  decisions 
based  upon  those  statutes  are  not  authoritative  in  determining 
the  scope  of  the  inquiry  permitted  by  the  laws  of  Missouri.^" 

6  Card  well  v.  Stuart,  67  Mo.  App.  61;  Hoelin  v.  Struttmann,  71 
Mo.  App.  309;  Johnson  v.  Johnson,  82  Mo.  App.  350;  Wilson  v.  Kuth- 
rauff,  S2  Mo.  App.  4.35 ;  Gordon  v.  Eans,  97  Mo.  587,  4  S.  W.  112,  11 
S.  W.  64,  370. 

TTygard  v.  Falor,  163  Mo.  234,  63  S.  W.  672;  In  re  Huffman's 
Estate,  1.32  Mo.  App.  44,  111  S.  W.  848;  In  re  Clinton's  Estate,  223 
Mo.  371,  123  S.  W.  1. 

8  In  re  Clinton's  Estate,  223  Mo.  371,  1-23  S.  W.  1. 

0  In  re  Huffman's  Estate,  132  :Mo.  App.  44,  111  S.  W.  848 ;  In  re 
Clinton's  Estate,  223  Mo.  ;i71,  123  S.  W.  1. 

10  Rev.  Laws  Mass.  1902.  c.  102,  §  43;  Gen.  St.  Conn.  1902,  §  367: 
Pub.  St.  N.  H.  1901,  c.  190;    Code  Iowa  1897,  §§  3315,  3316;    Comp. 


220  RECOVERY    OF   CONCEALED,  ETC.,  ASSETS  §  216 

§  216.  Nature  of  Proceeding, — The  right  of  property  as 
above  stated  may  be  tried  and  adjudicated  in  this  proceeding, 
and  hence  the  administrator  or  executor  is  not  confined  to 
the  remedies  open  to  him  through  an  action  in  a  court  of  gen- 
eral jurisdiction,  when  he  desires  to  recover  property  belong- 
ing to  the  decedent.  This  proceeding,  however,  only  permits 
the  recovery  of  the  specific  property  formerly  belonging  to 
the  deceased  and  generally  no  money  judgment  can  be  had  in 
the  event  that  the  property  itself  is  not  obtainable. ^^  This 
rule  has,  however,  an  exception  in  the  case  where  the  proceed- 
ing is  brought  against  an  administrator  or  executor  to  compel 
him  to  include  in  inventory  assets  which  were  in  his  possession 
at  time  of  inventory,  but  not  listed  and  which  he  had  since 
sold  and  converted  into  cash.  It  has  been  held  that  under  such 
circumstances  it  is  proper  for  the  court  to  order  the  adminis- 
trator to  charge  himself  in  the  inventory  with  the  amount 
received  for  the  property  of  the  deceased  which  he  failed  to 
list.^^  The  inquiry  is  first  instituted  by  affidavit  filed  by  the 
executor  or  administrator  or  another  person  interested,  in  the 
probate  court;  this  affidavit  stating  that  the  affiant  has  good 
cause  to  believe  and  does  believe  that  the  person  complained 
of  has  concealed  or  embezzled  or  is  otherwise  wrongfully 
withholding  goods,  chattels,  money,  books,  papers  or  evidences 
of  debt  of  the  deceased  and  has  them  in  his  possession  or  un- 
der his  control.^^  Upon  the  filing  of  this  affidavit  the  court 
may  cite  such  person  to  appear  before  the  court  and  compel 
his  appearance  by  attachment  if  necessary.  An  oral  examina- 
tion of  the  party  cited  may  then  be  had.^*  Unless  the  allega- 
tions of  the  affiant  are  admitted  at  this  oral  examination  be- 
fore other  witnesses  shall  be  examined,  issues  shall  be  framed 
upon  written  interrogatories  to  be  answered  also  in  writing 
by  the  party  or  parties  complained  of.^^  If  the  answer  con- 
tains new  matter,  a  reply  should  be  filed  thereto  by  the  com- 
plainant. Upon  the  refusal  of  the  person  cited  to  answer 
proper  interrogatories  the  court  has  authority  to  commit  him 

Laws  Mich.  1897,  §§  9355,  9356;  Rev.  Laws  Minn.  1905,  §§  3722, 
3723 ;  Gen.  St.  Kan.  1905.  §§  3071-3075 ;  In  re  Lynch's-  Estate,  83 
Hun,  .39,  31  N.  Y.  Supp.  767. 

11  Williams  v,  Williams,  145  Mo.  App.  382.  129  S.  W.  454. 

12  In  re  Huffman's  Estate.  1.32  Mo.  App.  44,  111  S.  W.  848;    Han- 
ley  V.  Holton,  120  Mo.  App.  393,  96  S.  W.  691. 

13  Rev.  St.  1909,  §  70. 

14  Rev.  St.  1909,  §  71 ;  Tygard  v.  Falor,  163  Mo.  234,  63  S.  W.  672. 

15  Rev.  St.  1909,  §  73. 


§  217  RECOVERY   OF   CONCEALED,    ETC.,  ASSETS  221 

to  jail.  The  issues  as  framed  sliall  l)e  tried  by  a  jury,  or  if 
neither  of  the  parties  require  a  jury  by  the  court  in  a  sum- 
mary manner/''  Upon  the  finding  of  the  jury  that  the  de- 
fendant is  wrongfully  withholding  property  the  court  may  or- 
der that  the  property  be  delivered  to  the  administrator  or 
executor  and  the  court  may  compel  obedience  to  this  order  by 
committing  the  defendant  to  jail  until  he  complies  therewith/^ 
Where  the  proceedings  are  instituted  against  administrators 
or  executors  or  surviving  partners,  and  the  finding  is  that  they 
are  wrongfully  detaining  property  of  the  deceased,  the  court 
shall  compel  and  cause  the  said  property  to  be  inventoried  and 
appraised  as  part  of  the  estate. 

§  217.  Forms  for  Use  in  Pleading. — The  following  form 
is  applicable  to  a  complaint  of  the  administrator  of  the  deten- 
tion of  property  belonging  to  the  estate  by  another.  It  may 
readily  be  changed  to  meet  the  situation,  where  a  person  in- 
terested in  the  estate  charges  the  administrator  or  executor 
thereof  with  failing  to  inventory  properly  assets  in  his  posses- 
sion which  belonged  to  the  deceased. 

Affidavit  of  Property  Concealed 

In  the  Matter  of  the  Estate  of  ) 

R.  R..  deceased.     J.  D.,  administrator,  j 
State  of  Missouri, 


County  of  ''^  ' 

J.  D.,  administrator  of  R.  R.,  deceased,  being  duly  sworn,  upon  his 
oath  states  that  he  has  good  cause  to  believe  and  does  believe  that 
W.  W.  has  at  the  county  and  state  aforesaid  wrongfully  withheld 
(or  embezzled)  (or  concealed),  and  now  has  in  his  possession  (or  under 
his  control),  certain  goods  and  chattels  of  the  said  R.  R.,  deceased, 
to- wit: 

1(X)0  bushels  of  corn value,     $500.00 

1  McCormick  Binder  6  foot  cut value.         9.5.00 

1  15  H.  P.  stationary  gasoline  engine vahie.       500.00 

(Describe  the  notes  and  effects  believed  to  be  concvaled.  or  if  you 
nre  unable  to  descrilte  them  definitely  say  "the  further  description 
of  which  is  unknown  to  this  afhant.") 

Wherefore,  he  prays  that  the  aforesaid  W.  W.  may  be  cited  and 
compelled  to  appear  before  this  court  and  answer  under  oath  such 
questions  as  may  lie  i)ropounded  to  him  concerning  the  ownership, 
concealment  and  inissession  of  said  effects. 

J.  D.,  Administrator. 

Sworn  to  and  subscribed  to  before  me  this  da.\   of  , 

10—.  J.  D.  (style  of  office.) 

leRev.  St.  1900.  §  73. 
17  Rev.  St.  1909.  §  74. 


222  RECOVERY   OF   CONCEALED,  ETC.,  ASSETS  §  217 

Upon  filing  the  affidavit  the  court  should  make  an  order  of 
record  directing  that  the  citation  issue. 

The  citation  may  be  in  the  following  form: 

State  of  Missouri, 
County  of 


State  of  Missouri,  to  W.  W.,  greeting: 

You  are  liereby  cited  personally  to  be  and  appear  before  the  judge 

of  the  probate  court  of  said  county  at  the  in  the  city  of 

on  the day  of ,  19—,  the  same  being  the  

day  of  term  of  said  court,  and  then  and  there  full  answers 

to  make  to  all  such  questions  and  to  all  such  interrogatories  as  may 
be  properly  propounded  to  you  touching  the  concealment  and  pos- 
session of  one  thousand  bushels  of  corn,  one  McCormick  binder  six 
foot  cut,  one  fifteen  horse  power  engine,  property  said  to  belong  to 
the  estate  of  R.  R.,  deceased,  and  there  to  do  and  to  submit  to  all 
proper  orders  of  the  court  in  the  premises;  and  hereof  fail  not  at 
your  peril. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  affixed  the 

seal  of  said  court  this day  of ,  19 — . 

,  Probate  Judge. 

It  will  be  observed  that  the  defendant  may  be  examined  or- 
ally on  oath  touching  the  charges  contained  in  the  affidavit. 
If  the  truth  of  such  charges  is  denied,  interrogatories  in  writ- 
ing should  be  submitted  pertinent  to  the  matters  alleged  in  the 
affidavit,  before  witnesses  are  examined,  and  the  party  cited 
must  answer  the  interrogatories  in  writing.  The  answer  of 
the  defendant  should  deny  or  respond  to  each  interrogatory 
distinctly.  The  form  of  the  interrogatories  will  vary  so  de- 
cidedly to  meet  the  facts  of  each  particular  case  that  no  gen- 
eral form  would  be  useful.  In  framing  interrogatories  or  the 
answer  thereto  reference  may  be  had  to  cases  cited  below.^* 
If  the  answer  alleges  new  matter,  a  reply  is  proper  practice. 

§  218.  Judgment  and  Effect  Thereof. — As  before  stated, 
if  the  person  cited  be  convicted  an  order  issues  from  the  court 
commanding  the  return  of  the  specific  property  which  the  jury 
or  court  found  to  have  been  unlawfully  withheld.  If  the  pro- 
ceeding is  one  against  the  administrator  or  executor,  the  order 
is  a  direction  that  the  property  be  listed  in  the  inventory  and 
a  proper  appraisement  had.  As  such  a  judgment  or  order  is 
a  final  one,  an  appeal  will  lie  therefrom.^^  If  the  person  cited 
be  convicted,  the  judgment  of  the  court  may  be  as  follows: 

isTygard  v.  Falor,  1G3  Mo.  2.34,  03  S.  W.  G72 ;  In  re  Huffman's 
Estate,  132  Mo.  App.  44,  111  S.  W.  S4S. 

19  In  re  CUnton's  Estate,  223  Mo.  371,  123  S.  W.  1 ;  Ruff  v.  Doyle, 
56  Mo.  301 ;  Hanley  v.  Holton,  120  Mo.  App.  .393,  9G  S.  W.  G91 ;  Ty- 
gard  V.  Falor,  103  Mo.  234.  G3  S.  W.  G72. 


§  218  RECOVERY   OF  CONCEALED,  ETC.,  ASSETS  223 

Form  of  Order  or  Judgment 

J.  D.,  administrator  of  li.  It.,  deceased,  "1 
vs.  Y 

W.  W.  J 

Now  at  this  day  comos  J.  D.,  administrator  of  R.  R.,  deceased,  as 
also  the  defendant,  W.  W.,  and  the  said  \V.  W.  havinj;  submitted  his 
answer  in  this  belialf,  denyinj,'  tlie  trutli  of  the  facts  alleged  in  the 
allidavit  and  interrugaturies  of  the  said  J.  D.  heretofore  filed,  and 
the  issne  made  coming  on  to  be  heard  before  the  court  without  the 
intervention  of  a  jury,  and  the  court  having  heard  the  evidence  and 
being  sutliciently  advised  in  the  premises,  finds  that  said  W.  W.  has 
concealed  and  unlawfully  detained  one  promissory  note  (describe  it), 
the  property  of  said  R.  R..  deceased,  as  alleged  against  him  in  said 
allidavit.  It  is  therefore  ordered  and  adjudged  that  the  said  W.  W, 
shall  forthwith  deliver  to  the  said  administrator  the  said  promissory 
note  so  as  aforesaid  found  l>y  the  court  to  have  been  by  him  un- 
lawfully detained.  It  is  further  ordered  and  adjudged  that  the  said 
J.  D.  do  have  and  recover  of  and  from  the  said  W.  W.  his  costs  and 
charges  herein  paid  out  and  expended. 


224  PUBLICATION   or  NOTICES  §  219 


CHAPTER  XIX 

PUBLICATION  OF  NOTICES  REQUIRED  DURING 
ADMINISTRATION 

§  219.  Notice  of  grant  of  letters. 

220.  Sauie — By  administrator  de  bonis  non. 

221.  Notice  where  intestate  left  no  known  heirs. 

222.  Notice  of  final  settlement. 

223.  Proof  of  publication,  how  made  and  preserved. 

224.  Effect  of  publication  of  notice  on  claims  not  presented. 

§  219.  Notice  of  Grant  of  Letters. — Within  ten  days 
after  letters  are  granted,  the  executor  or  administrator  must 
pubHsh  in  some  newspaper  pubhshed  in  the  county  where 
letters  of  administration  have  been  granted,  and  if  no  paper 
is  published  in  such  county,  then  in  a  paper  published  in 
any  other  county  in  the  state,  nearest  to  the  county  where 
such  letters  of  administration  have  been  granted,  for  three 
weeks,  a  notice  that  letters  testamentary  or  of  administra- 
tion have  been  granted  him,  stating  the  date,  and  requiring 
all  persons  having  claims  against  the  estate  to  exhibit  them 
for  allowance  to  the  executor  or  administrator  within  six 
months  after  the  date  of  the  letters,  or  they  may  be  pre- 
cluded from  any  benefit  of  such  estate,  and  that  if  any  such 
claims  be  not  exhibited  within  one  year  from  the  time  of 
such  publication,  they  shall  be  forever  barred.^  The  no- 
tice must  be  published  for  three  full  weeks  or  twenty-one 
days.  Three  weekly  insertions  are  not  sufficient.  It  has 
been  held  that  where  the  notice  was  published  on  the  12th, 
19th  and  26th  of  the  month  that  this  was  not  sufficient, 
that  only  covering  a  period  of  two  weeks. ^  In  cities  of 
over  100,000  population  the  publication  must  be  had  in  the 
paper  designated  by  the  circuit  court  under  section  561, 
Rev.  St.  1909,  for  the  publication  of  legal  or  judicial  no- 
tices. The  publication  in  such  cities  must  be  daily  for  the 
full  period  of  twenty-one  days. 

The  notice  may  be  in  the  following  form : 

Administrator's  or  Executor's  Notice 

Letters  testamentary  (or  of  administration)  on  the  estate  of  R.  R., 
deceased,  were  granted  to  the  undersigned  by  probate  court  of  

1  Rev.  St.  1909,  §  82,  as  amended  by  Laws  1911,  p.  79. 

2  Munday  v.  Leeper,  120  AIo.  417,  25  S.  W.  381. 


§  221  PUBLICATION   OF   NOTICES  225 

county,  Missouri,  ,  19 — .     Persons  having  claims  against  said 

estate  are  required  to  exliibit  same  to  tlie  undersigned  for  allow- 
ance, within  six  months  after  date  of  said  letters,  or  they  may  be 
precluded  from  any  benefit  of  said  estate,  and  if  such  claims  be  not 
exhibited  within  one  year  from  date  of  last  insertion  of  this  publica- 
tion they  shall  be  forever  barred. 
Dated  ,  19 — .  J.  D.,  Executor  (or  Administrator). 

§  220.  Same — By  Administrator  De  Bonis  Non. — When 
a  notice  of  the  grant  of  letters  has  been  once  given  by  an 
executor  or  administrator  as  required  by  law,  it  is  not  nec- 
essary for  his  successor,  or  any  subsequent  administrator 
de  bonis  non,  to  publish  such  notice.® 

§  221.  Notice  Where  Intestate  Left  No  Known  Heirs. — 
When  an  intestate  has  left  no  known  heirs,  the  adminis- 
trator must  also  publish  a  notice  for  six  weeks,  in  at  least 
two  newspapers,  containing  the  name  of  the  intestate,  a  de- 
scription of  his  person,  the  time  and  place  of  his  death,  the 
place  of  his  nativity,  if  known,  and  the  appraised  value  of 
his  estate.*  The  form  of  the  notice  in  such  case  may  be  as 
follows : 

Administrator's  Notice  for   Unknozun   Heirs 

Notice  is  hereby  given  that  R.  R.  died  intestate  at  in  the 

county  of  and  the  state  of  Missouri,  on  the  day  of 

,  19 — ,  leaving  no  known  heirs.     He  was  five  feet  ten  inches 

in  height,  large  frame,  and  blue  eyes,  auburn  hair,  light  complexion 
(give  a  minute  description  of  the  man) ;   was  about  twenty-eight  years 

of  age,  and  supposed  to  be  a  native  of  .     The  estate  of  the 

said  R.  R.,  deceased,  is  appraised  at  dollars,  cents. 

Aug.  — ,  19—.  J.  D., 

Administrator  of  the  Estate  of  R.  R.,  Deceased. 

Ordinarily  all  advertisements  must  be  published  in  some 
newspaper  of  the  county  where  the  proceedings  to  which 
they  relate  are  had,  if  there  be  one,  and  if  not,  then  in  one 
published  most  convenient  to  and  having  a  circulation  in 
the  county.^  But  in  advertising  for  heirs  the  notice  may 
be  published  in  any  paper  in  the  state.  The  object  being  to 
notify  parties  interested  in  the  estate  who  would  seem  nec- 
essarily to  be  at  a  considerable  distance  from  where  the 

3  Rev.  St.  1909,  §  86. 

4  Rev.  St.  1909,  §  87 ;  State  ex  rel.  McGeever  v.  Shires,  39  Mo. 
App.  5G0. 

r.  Rev.  St.  1909,  §  5S9 ;  Coombs  v.  Crabtree,  105  Mo.  292,  16  S.  W. 
830. 

Kel.Mo.P.G.— 15 


226  PUBLICATION   OF   NOTICES  §  222 

death  occurred,  the  notice  should  be  published  in  news- 
papers having  a  circulation  throughout  the  whole  country, 
as  well  as  a  local  circulation.  A  six  weeks'  publication 
would  require  the  notice  to  be  published  at  least  six  times 
in  a  weekly  newspaper  and  seven  days  should  elapse  after 
the  last  insertion,  and  if  possible  in  a  daily  it  should  be 
continued  in  the  paper  forty-two  days.^  A  four  weeks'  no- 
tice is  twenty-eight  days.'^ 

§  222.  Notice  of  Final  Settlement. — Before  the  admin- 
istration can  constitute  a  bar  by  reason  of  the  expiration 
of  the  special  limitation  provided  by  statute  to  the  further 
proof  of  debts  of  the  deceased  as  claims  against  the  estate, 
it  is  necessary  for  the  administrator  or  executor  to  publish 
notice  of  final  settlement  in  the  form  and  manner  provided 
in  R.  S.  ^lo.  1909,  §  238.8  'p^jg  subject  is  treated  in  Chap- 
ter XXVIII,  which  relates  to  the  settlement  of  the  accounts 
of  the  administrator. 

§  223.  Proof  of  Publication,  How  Made  and  Preserved. 
— The  evidence  of  the  publication  of  a  notice  or  advertise- 
ment is  the  affidavit  of  the  publisher  or  editor  of  the  paper. 
It  is  important  that  every  notice  required  by  law  to  be  pub- 
lished and  the  evidence  of  its  publication  should  be  pre- 
served on  file  in  the  proper  depository  among  the  papers  of 
the  cause  or  proceeding  to  which  it  relates.  The  statute 
requires  this  to  be  done.  It  provides  that  every  executor 
and  administrator  shall  file  in  the  office  of  the  clerk  of  the 
probate  court  the  affidavit  of  the  publisher  or  editor  of  the 
paper  in  which  such  executor  or  administrator  shall  publish 
any  notice  required  by  law  to  be  published  in  a  newspaper, 
within  ten  days  after  the  same  shall  be  made  (except  no- 
tice of  final  settlement,  which  shall  be  filed  at  the  time  of 
making  such  settlement),  with  a  copy  of  such  advertise- 
ment annexed,  stating  the  number  and  date  of  the  papers 
in  which  the  same  was  published. °  When  money  has  been 
paid  into  the  state  treasury  by  the  administrator  under  the 
law  of  escheats,  because  there  are  no  known  heirs,  the  pro- 
bate court  may  grant  a  certificate  for  the  payment  of  such 
money  to  the  heirs  upon  being  satisfied  that  they  are  en- 

6  Young  V.  Downey,  145  Uo.  250,  46  S.  W.  lOSG,  68  Am.  St.  Rep. 
568. 

7  Ratliff  V.  Magee,  165  Mo.  461,  65  S.  W.  713. 

8  See  post,  §  379. 

8  Rev.  St.  1909,  §  83,  as  amended  by  Laws  1911,  p.  79,  §  2. 


Attach  notice 
here. 


§  224:  PUBLICATION   OF  NOTICES  227 

titled  to  it,  and  under  the  former  statute  such  heirs  could 
apply  for  it  at  any  time  within  ten  years  after  the  special 
notice  recjuired  by  the  statute  is  given  to  the  unknown 
heirs  of  the  intestate.^"  But  under  the  present  statute  such 
heirs  may  apply  for  such  money  within  twenty-one  years 
after  the  money  has  been  paid  into  the  state  treasury. ^^ 

Affidavit  of  Publication 

State  of  Missouri,  ) 

/ .       *     '  s  ss. 
County,    j 

A.  B.,  bcins  duly  sworn,  on  his  oath  says,  that 
he  is  the  publisher  of  the a  news- 
paper of  general  circulation  published  weekly  in 

the  city   of  ,   county   and   state   aforesaid, 

and  that  the  notice  annexed,  was  printed  and  pub- 
lished in  said  newspaper  for  tliree  weeks  con- 
secutively, as  follows,  viz.:  In  numbers  11,  12 
and  13,  and  on  the  Sth,  loth  and  22d  days  of  Jan- 
uary,  19—.  A.  B. 

Sworn  to  and  subscribed  before  me,  this day  of ,  19 — 

J R . 

(Style  of  office.) 

The  clerk  must  carefully  file  and  preserve  all  such  af- 
fidavits in  his  office,  and  record  the  same  in  a  book  to  be 
kept  by  him  for  that  purpose. ^^  The  affidavit  of  the  pub- 
lisher or  editor,  so  filed  and  recorded,  or  a  certified  copy 
of  the  record  thereof  will  be  received  in  evidence  in  all 
courts  in  this  state.^^  But  such  affidavit  is  not  the  only 
evidence  of  the  publication  of  such  notices.  The  fact  may 
be  proven  by  other  evidence,  such  as  the  testimony  of  the 
publisher,  supported  by  the  files  of  the  paper.^'* 

§  224.  Same — Effect  on  Limitation  of  Claims. — Every 
executor  or  administrator  should  be  prompt  in  giving^  the 
notice  of  his  letters  by  publication  in  the  manner  and  within 
the  time  prescribed  by  the  statute.  Indeed,  this  should 
be  one  of  the  first  things  attended  to  after  the  receipt  of 
his  letters.  Under  a  former  statute,  if  he  sufirered  thirty 
days  to  elapse  after  the  letters  were  granted,  before  giving 
notice,  he  lost  to  the  estate  the  benefit  of  the  special  limita- 

10  In  re  Boniiiio's  Estate,  83  Mo.  433. 

11  Rev.  St.  1909,  §  <J259. 

12  Rev.  St.  1909.  §  S4. 

13  Rev.  St.  1909.  §  8r>. 

liDincle  v.  Bollick.  49  Mo.  App.  479;  State  ex  rel.  McGeever  v. 
Shires,  39  :Mo.  App.  5G0. 


228  PUBLICATION   OF   NOTICES  §  224 

tion  of  two  years,  which  barred  all  claims  not  exhibited 
for  allowance  within  that  time  from  the  date  of  publication 
of  the  notice ;  ^^  and  the  first  publication  of  the  notice  had 
to  be  within  thirty  days  after  the  grant  of  letters,  and  it  had 
to  be  published  three  weeks  successively  or  it  would  be  no 
bar  to  claims.^*  But  now  if  the  notice  be  published  within 
the  ten  days,  it  will  bar  all  claims  not  presented  within  one 
year  from  the  date  of  the  letters;  in  other  cases,  the  bar 
will  be  one  year  from  the  date  of  the  publication  of  the  no- 
tice.^'' The  failure  to  give  the  notice  does  not  invalidate 
the  acts  of  the  administrator.^^  The  object  of  the  notice 
is  to  enable  creditors  to  exhibit  their  demands  within  the 
time  prescribed ;  if,  therefore,  a  creditor  has  notice  of  the 
appointment  of  an  administrator,  and  exhibits  his  claim 
to  him  as  such,  he  cannot  afterward  take  advantage  of  the 
failure  of  an  administrator  to  give  notice  of  his  appoint- 
ment, as  an  excuse  for  omitting  to  have  his  claim  allowed 
against  the  estate  within  proper  time.^"  The  administrator 
is  bound  to  plead  or  avail  himself  of  the  special  statute  of 
limitation,  applicable  to  demands  against  his  estate.^"  And 
he  can  have  no  agreement  with  a  creditor,  by  which  the 
time  for  allowing  his  claim  may  be  extended  beyond  the 
statutory  limitation,  that  will  bind  the  estate,  or  the  heirs 
of  the  estate. ^^  And  where  the  cause  of  action,  or  right 
of  action  does  not  accrue  till  after  two  years  from  the  pub- 
lication of  the  notice,  it  is  not  barred  by  the  limitation 
of  this  statute. ^- 

A  court  of  equity  will  entertain  a  suit  to  reach  trust  funds 
in  the  hands  of  the  deceased  or  his  administrator  which 

15  Wilson  V.  Gregory,  61  Mo.  421;  Doerge  v.  Heiinenz,  1  Mo.  App. 
238. 

16  Bryan  v.  Mundy's  Adra'r,  17  Mo.  556;  Gibson  v,  Mozier,  9  Mo. 
259;    Hawkins  v.  Ridenhour,  13  Mo.  125. 

17  Laws  1911,  p.  79;  Greenabaum  v.  Elliott,  60  Mo.  25;  Farmers' 
Sav.  Bank  of  Marshall  v.  Burgin,  73  Mo.  App.  108 ;  Ryans  v.  Boogh- 
er,  169  Mo.  673,  69  S.  W,  1048;  Garesche  v.  Lewis,  93  Mo.  197,  6 
S.  W.  54. 

18  Adams  v.  Larrimore,  51  Mo.  130;  Leeper  v.  Taylor,  111  Mo. 
312,  19  S.  W.  955. 

19  Collamore  v.  Wilder,  19  Kan.  67. 

20  Stiles  V.  Smith,  55  Mo.  363. 

21  Collamore  v.  Wilder,  19  Kan.  67;    post,  §§  284-287. 

22  Tenny's  Adni'r  v.  Lasley's  Adni'r,  SO  Mo.  664 ;  Burton  v.  Ruth- 
erford, 49  Mo.  255;  Taylor  v.  Priest,  21  Mo.  App.  687;  Morgan  v. 
Gibson,  42  Mo.  App.  244;  State  ex  rel.  Patterson  v.  Tittmann,  134 
Mo.  162,  35  S.  W.  579;  Binz  v.  Ilyutt,  200  Mo.  299,  98  S.  W.  637. 


§  224  PUBLICATION   OF  NOTICES  229 

were  no  part  of  the  estate,  and  the  special  statute  would 
not  be  applicable;  but  the  fact  that  the  claim  grew  out  of 
a  trust  fund  will  not  save  it  from  the  operation  of  the  stat- 
ute, if  the  result  be  a  money  judgment  to  be  classified  and 
paid  out  of  the  assets,  unless  the  suit  was  begun  within  two 
years  after  letters  were  granted.^^ 

Under  the  statutes  as  in  existence  until  the  amendments  of 
1911  shortening  the  necessary  period  of  administration  from 
two  years  to  one,  it  was  held  that  not  only  was  it  necessary 
to  exhibit  the  claim  to  the  administrator  or  executor,  but  it 
was  necessary  also  to  present  it  to  the  court  for  allowance 
within  the  two  years,  by  filing  it  in  the  probate  court  for  that 
purpose.-*  Owing  to  the  contradictory  and  ambiguous  lan- 
guage employed  in  the  amendments  of  1911,  it  is  doubtful 
if  a  claim  is  barred  that  is  exhibited  to  the  administrator,  but 
not  presented  to  the  court,  during  the  year.  It  is  probable  that 
under  our  present  statute  all  that  is  necessary  to  keep  the 
bar  from  becoming  efifective  is  to  exhibit  the  claim  to  the 
administrator  or  executor. 

And  it  seems  that  neither  in  equity  or  at  law  can  a  cred- 
itor who  has  not  presented  his  claim  within  the  time  pre- 
scribed by  statute,  be  relieved  from  the  special  limitation, 
unless  the  claimant  was  under  disability,  or  the  claim  did 
not  accrue  until  after  the  decedent's  death. ^'^  Ignorance 
of  the  death  of  the  decedent  furnishes  no  excuse  and  will 
not  aid  a  belated  creditor,  where  notice  of  letters  had  been 
properly  and  timely  given.-"  Demands  by  the  state  for 
taxes  levied  against  the  property  while  in  the  course  of 
administration  need  not  be  presented  for  allowance  and  are 
not  barred  but  should  be  paid  by  the  administrator  without 
being  presented. ^^ 

2  3  Braraell  v.  Adams,  146  Mo.  70.  47  S.  W.  9.31. 

24  Farmers'  Sav.  Bank  of  Marshall  v.  Bui'sin,  73  Mo.  App.  108. 

25  Boekmau  v.  Kichartlson,  150  Mo.  430,  51  S.  W.  689. 

26  Beekman  v.  Richardson,  150  Mo.  430,  51  S.  W.  689. 

2  7  State  ex  rel.  Ziegenhein  v.  Tittmann,  119  Mo.  661,  24  S.  W.  1032. 


230  SALE   OF   PERSONAL   ESTATE  §  225 


CHAPTER  XX 

OF  THE  SALE  OF  PERSONAL  ESTATE  BY  EXECUTOR  OR 
ADMINISTRATOR 

§  225.  When  personal  property  may  be  sold— terms  of  sale. 

226.  Same — When  there  are  no  known  heirs. 

227.  Notice  of  sale. 

228.  Sale — How  conducted. 

229.  Same — Postponement  of  sale. 

230.  Sale  bill— List  of  articles  sold. 

231.  Same — Return  of  sale  bill. 

232.  Personalty  may  be  sold  at  private  sale,  when. 

233.  Sale  of  property  bound  by  the  lien  of  an  execution,  etc. 

234.  Same — Application  of  proceeds  of  sale. 

235.  Same — When  lien  of  execution  attaches,  etc. 

236.  Personal  property  may  be  reserved  from  sale. 

§  225.  When  Personal  Property  May  be  Sold,  Terms  of 
Sale. — The  title  of  the  personal  property  of  the  deceased 
vests  in  the  executor  or  administrator  in  trust  for  the  payment 
of  the  debts  of  the  deceased,  legacies,  expenses  of  administra- 
tion, and  a  distribution  of  any  surplus  to  those  entitled  to  it, 
and  to  this  end  he  must,  in  general,  convert  it  into  money. ^ 
This  is  often  done  by  a  public  sale,  though  in  some  instances 
specific  articles  of  property  may  be  sold  at  private  sale  by  or- 
der of  the  court  or  judge.  To  secure  to  the  purchaser  a  good 
title  to  the  property  the  essential  requisites  of  the  law,  in  rela- 
tion to  the  sale,  should  be  complied  with  by  the  executor  or  ad- 
ministrator. After  the  personal  effects  have  been  collected,  in- 
ventoried and  appraised,  and  the  widow  has  taken  at  the  ap- 
praisement the  amount,  or  what  she  wishes,  of  the  property 
allowed  her  by  law,  the  executor  or  administrator  must  sell 
at  public  sale  all  goods  and  chattels  of  the  deceased  that  are 
liable  to  perish,  be  consumed,  or  rendered  worse  by  the  keep- 
ing, giving  such  credit  as  he  may  think  best,  not  exceeding  one 
year,  and  take  bonds  or  notes,  with  good  security,  of  the  pur- 
chaser.'^ If  the  perishable  goods  are  not  sufficient  to  pay  the 
debts,  he  must  sell  other  personal  estate  in  the  same  manner, 
until  the  debts  and  legacies  are  all  paid ;  but  specific  legacies, 
that  is,  a  horse,  cow,  or  other  specific  articles  of  property  ex- 

1  Collamore  v.  Wilder,  19  Kan.  07;    Tye  v.  Tye,  88  Mo.  App.  330. 
•i  Rev.   St.  1909,  §  121 ;    State  ex  rel.  Griggs  v.  Edwards,  78  Mo. 
473. 


§  227  SALE    OF    PERSONAL    ESTATE  231 

pressly  given  by  the  will  to  any  one,  cannot  be  sold  in  any  case, 
unless  it  be  necessary  for  the  payment  of  debts.  So,  if  any 
testator  directs  his  estate  not  to  be  sold,  it  must  be  reserved, 
unless  it  is  necessary  to  sell  it  for  the  payment  of  debts,  etc.^ 
§  226.  Same — Where  there  are  no  known  heirs  or  legal 
representatives,  the  administrator  nuist  sell  all  the  personal 
estate  of  the  deceased  within  one  year  after  administration  is 
granted.*  Strictly,  under  the  statute,  when  there  are  known 
heirs  and  legal  representatives,  the  administrator  has  the  right 
to  sell  only  such  goods  and  chattels  of  the  deceased  as  are 
liable  to  perish,  be  consumed  or  rendered  worse  by  keeping, 
unless  the  proceeds  of  such  perishable  property  be  insufficient 
to  pay  the  debts  and  legacies,  in  which  case  he  may  sell  other 
property  until  a  sufiiciency  is  realized,  and  no  more.  He  has 
no  right  to  sell  the  personal  chattels  and  convert  them  into 
money,  for  the  sole  purpose  of  distribution,  without  an  order 
of  the  court.  But  as  it  cannot  be  certainly  known,  in  many 
cases,  what  amount  of  debts  are  owing  by  the  estate,  the  prac- 
tice of  administrators  is  generally  to  sell  all  the  personal  chat- 
tels belonging  to  the  estate  not  reserved  or  taken  by  the  widow. 

§  227.  Notice  of  Sale. — The  first  step  toward  a  sale  is  to 
give  the  notice  rcijr.ired  by  the  statute.  The  statute  requires 
that  the  executor  or  administrator  shall  give  notice  of  the  time 
and  place  of  sale,  not  less  than  ten  days  nor  more  than  three 
weeks,  in  some  newspaper  in  this  state,  or  by  handbills  put  up 
in  eight  public  places  in  the  county  where  the  sale  is  made.^ 
Where  the  estate  to  be  sold  is  large  the  notice  is  usually  given 
by  publishing  it  in  the  county  paper,  and  also  by  posting  up 
handbills,  but  in  the  case  of  a  small  estate  the  notice  is  gen- 
erally given  by  handbills  only.  In  the  absence  of  fraud  the 
failure  of  the  administrator  to  properly  give  this  notice  would 
not  affect  the  title  of  a  purchaser  at  the  sale." 

The  following  may  be  used  as  a  form  of  the  notice  of  sale : 

Administrator  s  Sale 

Notice  Is  hereby  given,  that  the  undersigned,  J.  D.,  administrator 

of  the  estate  of  R.  R.,  deceased,  will,  on  the day  of  , 

19 — ,   between  the  hours  of  o'eloclc  a.  m.  and  o'clock 

p.  m.  of  that  day,  sell  at  public  sale,  on  the  premises  lately  occupied 

by  the  said  deceased,  in  the  county  of  (state  the  place  of 

sale),  the  personal  iroods  and  chattels  belonging  to  the  estate  of  the 

»  Rev.   St.  1000,  §§  122,  124.  e  Rev.  St.  1000.  §  12:^ 

*  Rev.  St.  1909,  §  125.  «  James  v.  Dixon,  21  ^lo.  538. 


232  SALE   OF   PERSONAL   ESTATE  §  227 

deceased,  consisting  of  horses,  cattle,  hogs,  wagons,  farming  utensils, 
and  other  articles  too  numerous  to  mention. 

Terms  of  Sale. — On  all  sums  over dollars  a  credit  of 

months  will  be  given,  the  purchasers  giving  notes  with  approved  se- 
curity, bearing  —  per  cent  interest  from  date ;   cash  in  hand  for  all 

sums  under  dollars.     No  property  to  be  removed  until  the 

terms  of  the  sale  are  complied  with. 

Dated  July  — ,  1&— .  J.  D., 

Administrator. 

When  the  notice  is  given  by  posters,  it  would  be  well  to 
keep  a  copy  of  the  notice,  upon  which  should  be  indorsed  an 
affidavit  of  posting,  and  return  it  with  the  sale  bill.  If  the 
notice  is  published  in  the  newspaper,  the  affidavit  of  the  editor 
or  publisher  attached  to  the  notice  will  be  the  proper  evidence 
of  its  publication. 

§  228.  Sale,  How  Conducted. — In  every  public  sale  the 
executor  or  administrator  must  employ  a  competent  clerk,  not 
interested  nor  of  kin  to  any  heir  or  devisee  of  the  estate. '^  He 
may  also  employ  an  auctioneer  or  crier,  to  cry  the  sale,  for 
which  the  court  will  allow  a  reasonable  compensation.  The 
sale  being  a  public  one,  all  persons  competent  to  make  con- 
tracts, who  can  comply  with  the  terms  of  the  sale,  may  be- 
come purchasers.  Each  article  should  be  put  up  and  sold  by 
itself,  to  the  highest  bidder.  The  crier  is  not,  however,  bound 
to  accept  or  cry  the  bid  of  an  irresponsible  person.*  The  crier 
is  the  agent  of  the  administrator  in  selling,  and  of  the  pur- 
chaser also  in  buying ;  therefore,  if  he  makes  false  and  f raudti- 
lent  representations  in  selling,  they  will  be  taken  as  the  fraud 
of  the  administrator.  In  an  action  on  a  note  given  for  prop- 
erty bought  at  an  administrator's  sale,  it  was  held  that  the 
'purchaser  may  show  in  defense  to  the  note  that  the  administra- 
tor, knowing  the  contrary,  fraudulently  represented  the  goods 
to  be  sound.®  The  sale  should  be  conducted  honestly  and 
fairly.  The  estate  is  not,  in  general,  liable  on  a  warranty  made 
by  the  administrator,  though  he  may  be  personally  liable.  In 
sales  made  by  administrators  at  auction,  there  is  no  express  or 
implied  warranty  of  the  title  of  the  property  sold.^°  The  rule 
caveat  emptor  seems  to  be  strictly  applicable  to  sales  of  per- 
sonalty by  administrators.    So  that  in  the  absence  of  fraud  or 

7  Rev.  .St.  1909,  §  127. 

8  Hobbs  V.  Beavers,  2  Ind.  142,  52  Am.  Dec.  500. 

9  Ray  V.  Virgin,  12  111.  216 ;  Kennedy's  Heirs  v.  Kennedy's  Heirs, 
3  Ala.  438. 

loMockbee's  Adm'r  v.  Gardner,  2  Har.  &  G.  (Md.)  176;  1  Bouv. 
Inst.  391. 


§  230  SALE    OF    PERSONAL    ESTATE  233 

mistake,  the  purchaser  at  such  sales  must  not  only  look  out  for 
the  title,  but  for  the  quality  of  the  article  he  buys.^^  The  same 
rule  ai)plies  to  a  purchaser  of  real  estate,  who  has  knowledge 
of  all  the  facts.^^  A  bidding  at  an  auction  may  be  retracted  at 
any  time  before  the  hammer  is  down.  A  bidder  may  withdraw 
his  bid  before  that  time,  but  not  afterward.  The  striking 
down  of  the  hammer  signifies  the  assent  of  the  auctioneer  to 
the  proposition  contained  in  the  bid,  and  clinches  the  sale.*^ 
If  an  administrator  purchase  goods  of  the  estate  at  his  own 
sale  at  a  price  less  than  their  appraised  value,  he  will  be  ac- 
countable for  the  difference. ^•^  However,  the  administrator  of 
the  grantor  in  a  deed  of  trust  may  purchase  at  the  trustee's 
sale.^° 

§  229.  Same — Postponement  of  Sale. — The  statute  is 
silent  as  to  the  right  of  an  administrator  to  postpone  a  sale, 
yet  it  is  presumed  that  the  law  would  justify  a  postponement 
where  the  best  interest  of  the  estate  requires  it,  and  if  the  state 
of  the  weather,  high  waters  and  the  like,  are  such  as  to  prevent 
the  attendance  of  bidders.  It  is  supposed  that  this  will  rest 
in  the  sound  discretion  of  the  administrator.  Notice  should  be 
given  of  the  postponed  sale  for  the  same  length  of  time  and 
in  the  same  manner  as  of  the  first  sale.  When  property  is 
about  to  be  sold  in  vacation,  on  petition  of  the  executor  or  ad- 
ministrator or  other  person  interested  in  the  estate,  the  judge 
may  suspend  the  sale  until  the  next  session  of  the  court. ^® 

§  230.  Sale  Bill— List  of  Articles  Sold.— The  clerk  of 
the  sale  must  keep  a  true  account  of  the  sales  made — make  a 
list  of  sales  specifying  each  article  sold,  the  price  and  name  of 
the  purchaser,  and  must  annex  his  affidavit  to  the  list,  stat- 
ing that  the  same  is  a  true  account  of  the  sales  made  by  the 
executor  or  administrator  at  the  time  specified. ^^  Bach  article 
must  be  sold  and  set  down  in  the  bill  separately.  Several  dis- 
tinct articles  should  not  be  sold  together ;  as,  a  buggy'  and  set 
of  harness.  The  buggy  should  be  sold  by  itself  and  the  price 
it  brings  set  down  opposite  on  the  list,  and  so  of  the  harness. 
A  lot  of  sheep,  or  a  lot  of  hogs,  it  would  seem  may  be  sold  to- 
il Ray  V.  Vir.iiin,  12  111.  lilO :  Rinjiliam  v.  Maxcy,  15  III.  294;  Fo- 
ley V.  Bouhvare,  86  Mo.  App.  G74. 

12  Noble  V.  Cain,  22  Kan.  493;    Valle's  Heirs  v.  Fleming's  Heirs, 
29  Mo.  152,  77  Am.  Dec.  557. 

13  2  Kent,  Com.  537. 

14  Criswold  v.  Chandler,  5  N.  II.  492. 

10  Markwell  v.  Markwell,  157  Mo.  326,  57  S.  W.  1078, 
16  liev.  St.  1909,  §  136.  it  Rev.  St.  1909.  §  128. 


234  SALE   OF  PERSONAL   ESTATE  §  231 

gether  at  so  much  per  head,  or  so  much  per  pound,  or  so  much 
for  the  drove  en  masse,  if  it  is  apparent  that  they  can  be  sold 
to  better  advantage  in  that  way  than  to  sell  them  separately. 
So  a  field  of  corn  or  wheat  may  be  sold  as  an  entirety,  but 
two  or  more  different  pieces  or  fields  should  be  sold  separately. 
§  231.  Same — Return  of  Sale  Bill. — \\^hen  the  sale  bill 
is  completed  and  duly  verified  by  the  proper  affidavit  of  the 
clerk  of  the  sale,  the  executor  or  administrator  must  file  it  in 
the  office  of  the  clerk  of  the  probate  court  within  thirty  days 
after  the  sale,  and  it  must  be  recorded  by  the  clerk  in  like 
manner  and  with  like  effect  as  inventories  and  appraisements.^® 

Form  of  Sale  Bill 

Account  of  sales  of  the  goods,  chattels,  and  personal  estate  of  R. 
R.,  deceased,  made  by  J.  D.,   administrator  of  said  estate,  on  the 

day  of ,  19—,  at  the  late  residence  of  said  deceased,  in 

the county  of ,  in  pursuance  of  notice  duly  given,  and 

in  presence  of  J.  S.,  clerk  of  said  sale. 


No.  Articles  Sold 


1  Buggy    

1  Set  of  buggy   luirnc: 

1  Bay    mare 

1  Red  milch  cow 

20  Stock  hogs 

10  Acres  of  wheat. . . . 


Names  of  Purcliasers       Price 


Jolm  Flinn    $  75  00 

do         do    7  .50 

Thomas   Gregg 100  00 

Henry  Dunn 35  00 

John  Davis,  at  $.3 60  00 

R.  R.  Conner,  at  $12 120  00 

Total  amount  of  sales $397  50 

Attest:  J-  D.,  Administrator. 

Affidavit  of  Clerk  of  Sale 
State  of  Missouri, 


County  of  .  | 

The  undersigned,  J.  S ,  being  duly  sworn,  on  his  oath  says  that 

he  acted  as  clerk  of  the  above  mentioned  sale,  and  that  the  above 
list  is  a  true  account  of  the  sales  made  by  J.  D.,  the  administrator 

of  the  estate  of  R.  R.,  deceased  on  the  day  of  ,  19—, 

as  above  specified.     He  further  says  that  he  is  not  interested  in  nor 
of  kin  to  any  heir  or  devisee  of  the  estate.  J.  S . 

Sworn  to  and  subscribed  before  me  this day  of ,  19 — . 

J.  R.  . 

(Style  of  office.) 

The  sale  bill  when  sworn  to  by  the  clerk  is  prima  facie  evi- 
dence of  what  it  purports  to  be  or  contain,  but  it  is  not  conclu- 
sive.^® 

18  Rev.  St.  1909,  §  129. 

18  Talbot's  Ex'r  v.  Mearns,  21  Mo.  427. 


§  232  SALE   OF  PERSONAL   ESTATE  235 

§  232.  Personalty  May  be  Sold  at  Private  Sale. — When- 
ever the  court  or  jud^c  in  vacation  is  satisfied  that  it  will  not 
be  prejudicial  to  those  interested  in  the  estate,  he  may  author- 
ize the  executor  or  administrator  to  sell  any  part  of  the  per- 
sonal estate  of  the  deceased  at  private  sale,  and  prescrihe  the 
terms  thereof.  The  order  for  such  a  sale  is  made  by  the  court 
or  judge  in  vacation,  on  application  of  the  executor  or  admin- 
istrator. Where  property  comes  to  the  hands  of  the  executor 
or  administrator  after  the  regular  sale  has  occurred,  or  an 
article  of  property,  though  valuable  for  a  specific  purpose,  is 
unsalable,  and  a  better  price  could  probably  be  obtained  for  it 
at  a  private  sale,  or  if  an  entire  stock  of  goods  would  sell  to 
better  advantage,  in  these  and  like  cases  it  would  be  proper  to 
order  a  private  sale. 

An  administrator  has  no  power  to  sell  personal  property 
belonging  to  the  estate  without  an  application  and  order  of 
the  probate  court  directing  a  private  sale  and  prescribing  the 
terms  thereof.  Should  the  administrator  sell  personal  prop- 
erty at  private  sale  without  first  procuring  an  order  of  court 
directing  him  so  to  do.  he  is  responsible  for  losses  sustained 
by  failure  to  obtain  full  value  of  the  property.  But  adult  heirs 
who  are  advised  of  such  sale  are  estopped  from  suing  for  such 
loss.2» 

Application  for  Order  to  Sell  at  Private  Sale 

Estate  of  R.  R..  deceased.  |  j^  ^^^^  ^^^^^^^^  ^^^^^^^ 
J.  D.,  Administrator.        J 

The  undersigned,  J.  D.,  administrator  of  the  estate  of  R.  R..  de- 
ceased, shows  to  the  court  that  the  interest  of  said  estate  requires 
that  a  billiard  table  (or  ten  shares  of  the  capital  stock  of  the  Han- 
nibal &  St.  .Joseph  Railroad  Company)  belonging  to  said  estate, 
should  be  sold  at  private  sale.     He  therefore  asks  an  order  permit- 

ing  him  to  sell  the  same  at  private  sale.  J.  D ., 

Administrator. 

Subscribed  and  sworn  to  before  me,  this day  of ,  19 — . 

J.  R.  , 

(Style  of  office.) 

The  order  to  sell  at  private  sale  does  not  dispense  with  the 
necessity  of  an  appraisement  of  the  property.  The  private  sale 
is  simply  substituted  for  the  public  sale.  The  court  must  pre- 
scribe the  terms  of  the  sale,  as  to  the  time  and  place  of  notice, 

2  0  Rev.  St.  1909,  §  126;  Orcliard  v.  Wright-Dalton-Bell-Anchor 
Store  Co.,  22.5  Mo.  414,  12.5  S.  W.  4SG,  20  Ann.  Cas.  1072;  State  ex 
rel.  Wann  v.  Dickson.  2V.\  Mo.  GO.  Ill  S.  W.  S17. 


236  SALE   or  PERSONAL  ESTATE  §   232 

and  time  of  payment,  and  may  fix  the  minimum  price  for 
which  it  may  he  sold. 

The  order  may  be  as  follows: 

Order  for  Private  Sale 

In  the  matter  of  the  estate  of  | 
R.  R.  deceased.  j 
Now  comes  J.  D.,  administrator  of  said  estate,  and  files  his  writ- 
ten application  for  permission  to  sell  (here  describe  the  property), 
belonging  to  said  estate  at  private  sale,  and  the  court  being  satisfied 
that  it  will  be  for  the  best  interest  of  the  estate,  and  not  prejudicial 
to  persons  interested  therein,  to  sell  the  same  at  such  sale,  it  is  or- 
dered that  said  administrator  sell  said  property  at  private  sale  for 
not  less  than  its  appraised  value,  on  a  credit  of months,  tak- 
ing the  purchaser's  note  at  eight  per  cent  interest  from  date,  with 
good  security,  and  that  he  report  the  same  to  this  court. 

If  it  is  deemed  best  to  give  notice  of  the  sale,  state  the  kind 
of  notice  required. 

These  forms  for  application  and  order  for  private  sale  may 
be  used  in  any  case.^^ 

§  233.  Sale  of  Property  Bound  by  the  Lien  of  an  Execu- 
tion.— Where  any  personal  property  is  bound  by  the  lien  of 
an  execution,  whether  levied  or  not,  or  by  the  lien  of  an  at- 
tachment, at  the  time  of  the  death  of  the  decedent,  the  ex- 
ecutor or  administrator  must,  nevertheless,  inventory  and 
cause  such  property  to  be  appraised  separately  from  the  other 
personal  property  and  report  the  same  to  the  court,  and  the 
court  may  recjuire  the  property  to  be  redeemed  or  sold  as  the 
interest  of  the  estate  may  demand. ^^  If  the  property  be  held 
by  an  attachment  the  court  issuing-  the  writ  may  order  it  to 
be  turned  over  to  the  administrator.^^  The  forms  of  inven- 
tory, appraisement  and  sale  bill  used  in  ordinary  cases  may  be 
adopted  here.  Indeed,  the  article  might  be  separately  named 
on  the  regular  inventory,  and  appraisement,  and  the  lien  des- 
ignated, but  the  proceeds  of  the  sale  should  be  kept  to  them- 
selves on  the  sale  bill  or  on  a  separate  sale  bill. 

§  234.  Same — Application  of  Proceeds  of  Sale. — The 
proceeds  of  the  sale  of  such  property  must  be  applied  under 
the  direction  of  the  court,  in  the  following  manner:  1.  Where 
there  is  but  one  execution  or  attachment  to  the  payment  of  it. 
2.  Where  there  is  more  than  one  execution  or  attachment,  the 
liens  whereof  are  of  even  date  to  the  payment  of  such  execu- 

21  Lappin  v.  Mumford,  14  Kan.  9. 

22  Rev.  St.  19«J,  §  131. 

2  3  Kenrick  v.  Huff,  71  Mo.  570. 


§  235  SALE   OF   PERSONAL   ESTATE  237 

tions  and  attachments;  or  if  the  proceeds  are  insufficient  to 
pay  the  whole,  then  in  prcjportion  to  their  respective  amounts. 
3.  When  there  is  more  than  one  execution  (jr  attachment,  or 
hoth  an  execution  and  an  attachment,  the  hens  whereof  are  of 
uneven  dates,  and  the  proceeds  are  not  sufficient  to  pay  the 
whole,  to  their  payment  according  to  their  priority  or  lien ; 
and  in  every  case  the  residue,  if  any,  after  satisfying  the  liens 
of  the  executions  and  attachments,  will  be  assets  in  the  hands 
of  the  executor  or  administrator,  to  be  administered  accord- 
ing to  law.-* 

.  §  235.  Same — The  Lien  of  an  Execution  issued  by  a  jus- 
tice of  the  peace,  attaches  and  binds  all  the  property  of  the 
defendant  from  the  time  it  is  received  by  the  officer,  except 
such  as  may  be  disposed  of  to  an  innocent  party  ;^'  but  an 
execution  issued  from  a  court  of  record  and  an  attachment  do 
not  become  a  lien  until  they  are  levied,  and  then  only  on  the 
property  attached.  At  common  law,  if  there  was  a  subsisting 
levy  at  the  time  of  the  death  of  the  execution  defendant,  the 
officer  proceeded  with  the  sale  of  the  property  as  if  no  death 
had  occurred.  But,  instead  of  permitting  the  sale  to  be  made 
by  the  officer,  and  the  proceeds  applied  by  him  on  the  writ  in 
the  usual  way,  the  law  suspends  his  authority  and  control  over 
the  property,  and  requires  it  to  be  sold  by  the  executor  or  ad- 
ministrator, and  the  proceeds  applied,  under  the  order  of  the 
court,  to  the  satisfaction  of  the  writ  or  writs  in  the  same  order 
that  the  officer  would  be  bound  to  apply  them,  if  the  sales  were 
made  by  him. 

If  the  executor  or  administrator  fails  to  take  charge  of  the 
attached  property,  and  it  is  lost  during  litigation  by  the  care- 
lessness of  the  officer,  the  fact  that  he  might  have  taken  it 
and  used  it  to  pay  preferred  claims,  does  not  entitle  the  plain- 
tiff in  the  attachment  to  satisfaction  out  of  the  estate;  his 
claim  is  treated  as  paid  to  the  extent  of  the  value  of  the  prop- 
erty attached,  deducting  costs,  and  he  must  look  to  the  officer 
as  to  that  amount. -'' 

This  provision  is  subject  to  the  right  of  the  widow,  if  there 
be  one,  to  such  property  as  the  law  gives  her  absolutely,  and 
such  as  she  may  take  as  against  creditors  of  the  estate.  If, 
therefore,  there  should  not  be  sufficient  property  to  satisfy  her 
claims  without  that  upon  which  the  lien  has  attached,  she  will 
take  it.     And  the  lien  of  the  writ  is  also  postponed  to  the  de- 

2  4  Rev.  St.  1909.  S  i:V2 ;    Keurick  r.  Huff,  71  Mo.  570. 

25  Rev.  St.  1909,  §  75  J6. 

2  6  Kenrick  v.  Huff.  71  Mo.  570. 


238  SALE    OF   PERSONAL    ESTATE  §  236 

mands  classed  in  the  first  and  second  subdivisions  of  the  class- 
ification of  demands  against  estates,  which  have  precedence 
over  all  other  demands  against  an  estate.'^ 

§  236.  Personal  Property  Reserved  from  Sale. — In  the 
first  section  of  this  chapter  we  stated  that  the  executor  or  ad- 
ministrator had  not  the  right  strictly  to  sell  property  unless  it 
was  perishable,  or  was  necessary  to  pay  the  debts,  but  that  as 
the  amount  of  the  debts  could  not  be  ascertained  to  a  certainty 
in  all  cases,  it  was  usual  to  sell  all  the  property  belonging  to 
the  estate  not  taken  by  the  widow.  We  have  thought  proper 
to  refer  to  the  subject  again.  In  all  cases,  if  the  decedent  left 
a  widow  or  other  family,  the  court  may,  if  in  its  opinion  it 
will  not  be  prejudicial  to  creditors,  and  will  be  advantageous  to 
the  widow  or  others  entitled  to  distribution,  order  that  no 
more  of  the  personal  estate  shall  be  sold  than  will  be  sufficient 
to  pay  the  debts,  requiring  that  good  and  sufficient  security  be 
taken  that  the  property  shall  be  forthcoming  to  answer  the  de- 
mand of  any  creditor  or  others  concerned  in  the  estate.  This 
does  not  dispense  with  the  duty  of  making  an  inventory  and 
appraisement  of  the  whole  estate  in  all  cases,  but  the  property 
ordered  not  to  be  sold  must  be  left  in  the  possession  of  the 
widow  and  family  who  may  use  and  enjoy  it  until  the  court 
orders  it  to  be  administered.-''  If  such  property  is  about  to  be 
sold  in  vacation,  the  judge  may,  upon  petition  of  the  executor 
or  administrator  or  other  person  interested,  order  the  suspen- 
sion of  the  sale  until  the  next  session  of  the  court.-^  If  it 
should  appear  to  the  court  that  such  property  is  about  to  be 
injured  or  wasted,  or  that  those  interested  would  be  benefited 
thereby,  the  court  will  order  that  it  be  administered ;  and  in 
such  case  the  rights  of  all  persons  interested  will  be  the  same  as 
if  the  order  reserving  it  from  sale  had  not  been  made.^°  The 
court  may  continue  any  such  matter  or  proceeding  for  good 
cause,  upon  such  terms  as  may  be  just.^^  The  court  may  at 
any  time  make  such  orders  as  the  interest  of  the  estate  may 
require  for  the  speedy  collection  of  debts  or  the  sale  and  dis- 
tribution of  personal  property.^^  The  executor  or  adminis- 
trator may,  by  order  of  the  court,  sell  and  assign  to  the  pur- 
chaser an  account  or  chose  in  action  belonging  to  the  estate,^^ 
or  the  estate's  interest  in  a  patent. 


34 


2  7  Rev.  St.  1909,  §  133.  3o  Rev.  St.  1900,  §  137. 

2  8  Rev.  St.  1909,  §§  1.34,  13.5.      3i  Rev.  St.  1909,  §  138. 

2  9  Rev.  St.  1909,  §  1.36.  3  2  Rev.  St.  1909,  §  112. 

3  3  Lappin  v.  Mumford,  14  Kan.  9. 

3  4  Heller  v.  I>eisse,  13  Mo.  App.  180. 


§  237  ACTION   OF   EXECUTOE8  239 

CHAPTER  XXI 
ACTIONS  BY  EXi:CUTOKS  AND  ADMINISTRATORS 

§  237.  Duty  of  executor  or  administrator  to  collect  debts,  etc. 

238.  Collection,  compromise  and  disposal  of  debts,  etc. 

239.  Suit  by,  etc.,  in  what  court. 

240.  Where  the  action  accrues  to  deceased  before  his  death. 

241.  Suit  by  foreign  administrator. 

242.  Where  the  action  accrues  after  death  of  deceased. 

243.  Allegations  of  representative  capacity  in  pleading. 

244.  Actions  to  collect  rents. 

245.  Continuance  of  action  commenced  by  deceased. 

246.  Actions  by  personal  representatives  for  wrongful  death  of 

deceased. 

247.  Security  for  costs  not  required. 

248.  Set-off,  when  allowed. 

249.  Same — A  few  illustrations. 

250.  Suit  before  justice — Judgment  for  excess. 

251.  When  the  executor  or  administrator  owes  the  deceased. 

252.  When  liable  for  interest,  etc. 

253.  Administrator  may  loan  money  of  the  estate. 

254.  Court  may  make  all  necessary  order,  etc. 

255.  Competency   of   witnesses  in   actions   by   or   against   execu- 

tors, etc. 

§  237.  Duty  of  Executor  or  Administrator  to  Collect 
Debts. — It  is  the  duty  of  an  executor  or  administrator  to 
proniptly  collect  all  money  and  debts  of  every  kind  out- 
standing and  due  the  estate,  and  he  may  give  receipts  and 
discharges  thereof.^  If  by  the  negligence  or  forbearance  of 
an  administrator  a  debt  is  lost — as,  if  the  debtor  becomes  in- 
solvent or  removes  from  the  country,  or  by  lapse  of  time  the 
statute  of  limitation  bars  the  claim,  so  that  the  money  by 
reason  of  such  causes  cannot  be  collected — the  administrator 
will  be  liable.-  If  he  claims  credit  for  a  claim  on  the  ground 
that  it  was  not  collectible,  he  must  show  that  by  proper  dili- 
gence he  could  not  have  collected  it.^  The  duty  of  the  executor 
or  administrator,  in  this  respect,  is  to  exercise  the  care  and 
vigilance  that  men  of  ordinary  prudence  bestow  upon  their 
own  business  of  a  similar  nature.*     The  debts  or  claims  of 

1  Rev.  St.  1909,  §  101. 

2  In  re  Johnston's  Estate,  9  Watts.  &  S.  (Va.)  107. 

3  Williams  v.  Petticrew's  Heirs,  62  Mo.  460;  Julian  v.  Abbott,  73 
Mo.  580. 

4  Williams  v.  Petticrew's  Heirs.  62  Mo.  402;  Fudge  v.  Durn,  51  Mo. 
264;  Julian  v.  Abbott,  73  Mo.  5S0;  Powell  v.  Hurt,  108  Mo.  507,  17 


240  ACTION  OF   EXECUTORS  §  238 

the  decedent,  whether  due  or  not,  are  usually  divided  into 
three  classes,  viz. :  good,  doubtful  and  worthless.  If  a 
claim  is  actually  worthless,  the  executor  or  administrator 
ought  not  to  incur  any  costs  or  expense  to  the  estate  in 
relation  to  it.  If,  however,  the  circumstances  of  the  debtor 
should  improve,  so  that  a  reasonable  probability  of  making 
the  money  exists,  it  would  be  his  duty  to  make  an  effort 
to  collect  it.  The  doubtful  claims  ought  at  once  to  be 
pressed  vigorously  until  they  are  secured,  or  until  it  becomes 
apparent  that  nothing  can  be  made.  And  of  course  he 
should  proceed  diligently  to  the  collection  of  all  solvent 
claims.  The  fact  that  a  claim  is  good  affords  no  excuse  for 
unnecessary  delay  in  an  effort  to  collect  it. 

§  238.  Compromise  with  Debtor. — Executors  and  ad- 
ministrators with  the  approval  of  the  probate  court,  may 
compromise  any  claim  against  any  debtor  of  the  decedent 
which  they  are  unable  to  collect  by  law.^  At  common  law 
the  compromise  or  release  of  a  debt  due  the  estate  was  re- 
garded as  waste,  and  if  it  resulted  in  loss  to  the  estate,  the 
executor  or  administrator  was  bound  to  make  it  good ;  but, 
without  the  authority  of  the  statute,  he  may,  according  to 
the  modern  decisions,  compromise  a  claim  and  receive  less 
than  the  full  amount  thereof,  and  if  he  can  show  that  he 
acted  in  good  faith  for  the  benefit  of  the  estate  he  will  be 
excused.  And  he  may  compromise  with  one  of  two  or 
more  joint  debtors  for  such  sum  as  he  may  see  fit,  and  re- 
lease him  from  further  liability  without  impairing  his  right 
to  collect  the  balance  from  the  others  not  released.^  The 
doctrine  now  is  that  he  stands  in  the  position  of  a  trustee 
and  is  liable  only  for  want  of  due  care  and  skill,  such  as 
prudent  men  exercise  in  the  management  of  their  own  af- 
fairs of  like  nature.'' 

It  would  be  safer  and  better  to  first  obtain  the  consent 
or  approval  of  the  court  before  compromising  a  claim  of 
any  magnitude  or  importance. 

S.  W.  980 ;  Merritt's  Estate  v.  Merritt,  62  Mo.  150 ;  Scudder  v.  Ames, 
142  Mo.  187,  43  S.  W.  659. 

5  Rev.  St.  3909,  §  242. 

6  Rev.  St.  1909,  §  2777 ;  Montgomery  County  v.  Auchley,  103  Mo. 
492,  15  S.  W.  G26 ;  Raker  v.  Hunt.  88  Mo.  405 ;  Hill  v.  Alexander,  77 
Mo.  290;  Rurrus  v.  Cook,  215  Mo.  496,  314  S.  W.  1065. 

7  Merritt's  Estate  v.  Merritt,  62  Mo.  150 ;  Jacobs  v.  Jacobs,  99  Mo. 
427,  12  S.  W.  457;  Powell  v.  Hurt,  108  Mo.  507,  17  S.  W.  9S9;  Scud- 
der V.  Ames,  142  Mo.  187,  43  S.  W.  659. 


§  240  ACTION    OF    EXECUTORS  241 

§  239.  Suit  by,  etc.,  in  What  Court. — An  executor  or 
administrator  may  commence  and  prosecute  all  actions 
which  are  necessary  in  the  course  of  his  administration." 
If  he  cannot  obtain  payment  of  a  demand  otherwise,  he 
should  resort  to  an  action  for  that  purpose.  The  heirs  are 
not  proper  or  necessary  parties  to  a  suit  by  an  administrator 
to  reco\er  a  demand  due  to  the  deceased."  He  may  sue  in 
any  court  having  jurisdiction  of  the  cause  of  action,  viz. : 
in  the  circuit  court  or  before  a  justice  of  the  peace,  but  he 
cannot  be  sued  in  any  case  in  a  justice's  court. ^'^  He  can- 
not, in  general,  maintain  an  action  for  the  collection  of  a 
claim  in  the  probate  court.  But  where  a  demand  is  pre- 
sented in  the  probate  court  for  allowance  against  an  estate, 
the  executor  or  administrator  may  ofTer  as  a  set-off  any 
demand  due  the  estate  from  the  claimant,  and  in  that  case, 
if  the  set-off  exceeds  the  claimant's  demand,  the  court  may 
render  judgment  against  such  claimant  for  the  excess  and 
for  costs. ^^ 

§  240.  Where  the  Action  Accrues  to  the  Deceased  Be- 
fore His  Death. — All  choses  in  action — debts,  notes,  ac- 
counts, etc.,  etc.,  which  belonged  to  the  deceased,  vest  im- 
mediately upon  his  death,  in  his  personal  representative, 
not  absolutely  in  his  own  right,  but  for  purposes  of  admin- 
istration, and  he  is  the  proper  person  to  bring  an  action 
thereon.^-  Where  the  cause  of  action  accrued  to  the  deceased 
in  his  lifetime,  or  is  founded  upon  a  contract  made  with 
him  before  his  death,  or  is  for  an  injury  done  to  the  prop- 
erty of  the  deceased  in  his  lifetime,  the  administrator  or 
executor  must  sue  in  his  representative  character.  Thus, 
if  an  administrator  wishes  to  sue  upon  a  note  which  is  pay- 
able to  his  intestate,  he   should  sue  "as  administrator  of 

,  deceased."     It  is  competent  for  the  defendant  to 

deny  in  his  answer,  that  the  plaintiff'  is  the  executor  or  ad- 

8  Rev.  St.  1909,  §  101. 

9  Naylor's  Adm'r  v.  Moffatt,  29  Mo.  126 ;  People's  Sav.  Bauk  v. 
Hoppe,  132  Mo.  App.  449.  Ill  S.  W.  1190. 

10  Rev.  St.  1909,  §  7.".97. 

11  Rev.  St.  1909.  §§  198.  199,  200;  Mitchell  v.  Martin,  63  Mo.  App. 
560 ;  Bealey  v.  Smith.  l."58  Mo.  515,  59  S.  W.  984,  81  Am.  St.  Rep.  317. 

12  Rev.  St.  1909,  §§  101,  104;  Young  v.  Wells,  33  Mo.  106;  Hickey 
V.  Dallmeyer,  44  Mo.  237;  State  ex  rel.  Hounsom  v.  Moore.  IS  Mo. 
App.  406;  Naylor's  Adm'r  v.  Moffatt.  29  Mo.  126;  People's  Sav.  Bank 
V.  Hoppe,  132  Mo.  App.  449,  111  S.  W.  1190. 

Kel.Mo.P.G.— 16 


242  ACTION    OF    EXECUTORS  §  241 

ministrator,  or  has  qualified  as  such.^^  g^^^  }f  ^g  answers 
as  to  the  merits  of  the  case,  he  thereby  admits  the  rep- 
resentative character  of  the  plaintiff,  and  relieves  him  from 
the  necessity  of  producing  or  proving  his  authority.  An 
executor  or  administrator  cannot  maintain  an  action  of 
ejectment  for  the  recovery  of  lands  of  which  the  deceased 
died  seized,^*  unless  he  be  authorized  by  the  probate  court 
to  lease  it  for  a  term  not  exceeding  two  years,  in  which 
case  he  may  sue  for  the  possession  of  the  same/^  Nor 
can  he  recover  damages  for  trespass  to  the  realty  commit- 
ted after  the  death  of  the  deceased ;  ^®  but  he  may  recover 
for  any  injury  done  to  it  in  the  lifetime  of  the  deceased.  So 
where  deceased  had  judgment  in  an  action  of  unlawful  de- 
tainer for  possession  and  for  damages,  the  administrator, 
and  not  the  heir,  should  have  execution  for  the  damages. ^^ 
And  if  he  should  take  charge  of  the  real  estate  and  collect 
or  receive  rents,  although  not  authorized  to  do  so,  he  must 
account  for  such  rents,^^  So  if  he  should  receive  a  debt  due 
the  decedent  by  color  of  his  ofhce,  he  and  his  sureties  are 
responsible  therefor.^^ 

§  241.  Action  by  a  Foreign  Administrator. — A  foreign 
administrator  or  executor  is  one  whose  authority  arises  out 
of  his  appointment  by  the  courts  and  under  the  laws  of 
another  state.  The  principal  administration  is  had  in  the 
state  where  the  deceased  was  domiciled  at  the  time  of  death. 
Administration  had  in  other  states  is  auxiliary  or  ancillary 
to  the  principal  administration. -''  It  is  held  in  a  great  many 
states  that  where  there  are  no  creditors  beyond  the  limits 
of  the  principal  administration  the  administrator  may  re- 
ceive the  personal  effects  of  the  deceased  in  any  other 
state  and  give  a  valid  receipt  or  release  for  the  same.-^ 
This  is  not  the  law  in  Missouri.  A  debtor  in  this  state  pay- 
ing a  debt  to  a  foreign  domiciliary  administrator  of  his 
creditor  will  not  be  protected  as  against  the  resident  ad- 
ministrator  subsequently   appointed   on   the   ground   that   the 

13  Codding  v.  Wbitaker,  5  Blackf.  (Ind.)  470. 

14  Evans  v.  Wilder,  7   Mo.  3G4. 

ic  Rev,  St.  1900,  §  l.TJ;  Hall  v.  Farmers'  &  Merchants'  Bank,  14.5 
Mo.  418,  4G  S.  W.  1000 ;  Thorp  v.  Miller,  137  Mo.  231,  38  S.  W.  929. 

16  Aubuchon  v.  Lory,  23  Mo.  99. 

17  Sims'  Adm'r  v.  Kelsay,  75  Mo.  68. 

18  Gamble  v.  Gibson,  59  Mo.  585. 

10  McPike  v.  McPike,  111  Mo.  216,  20  S.  W.   12. 

20  Bealey  v.  Smith,  1.58  Mo.  515,  .59  S.  W.  9S1,  81  Am.  St.  Rep.  317. 

21  Denny  v.  Faulkner,  22  Kan.  89. 


§  241  ACTION   OF   EXECUTORS 


243 


money  has  gone  where  in  the  end  it  must  go,  as  such  for- 
eign administrator  is  wholly  without  authority  to  receive 
payment.--  Our  statutes  now  provide  that  where  a  cause  of 
action  has  accrued  under  the  laws  of  another  state,  and  the 
person  or  persons  entitled  to  the  benefit  of  such  cause  of  ac- 
tion are  not  authorized  by  the  laws  of  that  state  to  prosecute 
such  cause  of  action  in  his,  her  or  their  own  names,  that  it 
may  be  prosecuted  in  this  state  by  the  executor,  administrator, 
guardian  or  other  person  empowered  by  the  laws  of  that  state 
to  sue  in  a  representative  capacity  -•'  and  the  proceeds  of  the 
action  distributed  under  the  laws  of  that  state. ^*  This  section 
has  been  most  frequently  applied  in  actions  brought  by  a 
foreign  administrator  for  death  by  wrongful  act  of  Iris 
intestate.-^  For  the  purposes  of  administration  the  real 
status  of  the  assets  is  where  the  debtor  resides  and  the 
assets  are  located,  and  the  authority  of  an  administrator 
does  not  extend  beyond  the  limits  of  the  government  grant- 
ing the  letters,  unless  the  foreign  law  controlling  the  as- 
sets permits  it.-"  From  the  fact  that  a  foreign  adminis- 
trator cannot  receive  the  personal  effects  of  the  deceased 
or  collect  his  debts  in  this  state  -'  it  necessarily  follows  that 
he  has  no  authority  to  sue  in  this  state  to  recover  a  debt 
due  the  estate  of  his  decedent.-^  An  administrator  ap- 
pointed in  one  state  cannot  maintain  an  action  in  his  in- 
dividual capacity  in  another  state  on  a  judgment  recovered 
by  his  intestate  in  the  state  of  his  domicile,-"  but  where 
the  administrator  himseH  as  administrator  recovers  judg- 
ment against  a  debtor  of  the  estate  and  the  debtor  there- 
after moves  to  Missouri  the  foreign  administrator  may  sue 

22  Crohn  v.  Clay  County  State  Bank,  137  Mo.  App.  712,  118  S. 
AV.  498;  Becraft  v.  Lewis,  41  Mo.  App.  546;  Naylor's  Adiu'r  v. 
Moffatt,  29  Mo.  120;  Richardson  v.  Busch,  198  Mo.  174,  95  S.  AV.  894, 
115  Am.  St.  Rep.  472;  Turner  v.  Camphell,  124  Mo.  App.  133,  101 
S.  W.  119. 

23  Rev.  St.  19(>9,  §  1737. 
2  4  Rev.  St.  1909,  S  1738. 

25  Lee  V.  Missouri  I'ae.  Ry.  Co.,  195  Mo.  420,  92  S.  W.  614;  Casi-y 
V.  Wrought  Iron  Bridge  Co.,  197  Mo.  62,  94  S.  W.  982. 

26  In  re  Ames'  Estate.  52  Mo.  290;  Bealey  v.  Smith,  158  :Mo.  515, 
59  S.  W.  984,  81  Am.  St.  Rep.  317. 

2T  Crohn  v.  Chiy  County  State  Bank,  137  Mo.  App.  712,  118  S. 
W.  498. 

28  Gregory  v.  McCorniick,  120  Mo.  657,  25  S.  AV.  565;  Wolf  v.  Sun 
ins.  Co.,  75  Mo.  App.  306;  Sommer  v.  Franklin  Bank,  lOS  Mo.  App. 
490.  83  S.  W.  1025. 

29Tittnian  v.  Thornton.  107  Mo.  500.  17  S.  W.  979,  16  L.  R.  A. 
410-  Milkr  v.  Hoover,  121  Mo.  App.  568,  97  S.  W.  210. 


244  ACTION  OF   EXECUTORS  §  242 

in  his  own  name  on  such  judgment  in  Missouri.^"  This  sub- 
ject is  discussed  in  Chapter  XXVII,  concerning  the  "estates  of 
non-residents."  ^^ 

§  242.     Where  the  Action  Accrues  After  the  Death  of  the 

Deceased. — Where  the  transaction  is  had,  or  the  contract  is 
made  with  the  representative  as  such,  it  is  not  important  in 
what  capacity  he  sues,  whether  as  executor  or  administra- 
tor, or  in  his  individual  name.  The  suit  may  be  maintained 
in  either  form.^-  In  such  cases  it  lias  often  been  held  that 
the  words  "as  executor,  etc.,"  are  merely  descriptio  per- 
sonse,  and  may  be  regarded  as  surplusage;  and,  therefore, 
the  executor  or  administrator  need  not  make  profert  of  his 
letters  on  the  trial. ^^  A  bond  or  note  made  payable  to  a 
person  as  administrator,  is  an  admission  of  his  representa- 
tive character,  and  the  maker  is  estopped  from  afterward 
denying  it."*  The  rule  deducible  from  the  authorities  seems 
to  be  that,  whenever  the  money  recovered  will  be  assets  in 
the  hands  of  the  representative,  he  may  sue  for  it  in  his  rep- 
resentative character.^^  And  for  any  injury  done  to  the 
goods  of  the  deceased  after  his  death,  his  representative 
may  sue  in  his  representative  capacity,  and  declare  as  "ex- 
ecutor or  administrator,"  or  he  may  sue  in  his  own  name 
and  in  his  individual  character.  The  rule  of  law  is  that,  the 
property  of  personal  chattels  draws  to  it  the  possession,  and, 
as  upon  the  death  of  a  person,  his  executor  or  administrator 
is,  in  point  of  law,  the  owner  of  the  goods  which  belonged 
to  him,  such  executor  or  administrator  may  bring  an  action 
against  any  one  who  injures,  or  takes  away  the  goods  after 
the  decedent's  death,  either  in  his  own  name  or  in  his  repre- 
sentative character,  whether  he  was  ever  in  actual  posses- 
sion of  them  or  not  before  the  wrong  was  committed.^''  So 
if  an  executor  or  administrator  pays  a  debt  for  which  the 
decedent  was  surety,  he  may  recover  the  amount  from  the 
principal  in  an  action,  either  in  his  own  name,  or  as  execu- 
tor or  administrator.^^    And  it  seems  that  an  administrator 

30  Miller  v.  Hoover,  121  Mo.  App.  568,  97  S.  W.  210. 

31  Chapter  xxvii,  §  361. 

3  2  Catlin  V.  Underhill,  4  McLean,  337,  Fed.  Cas.  No.  2,.'524. 

33  List  V.  Rodney,  83  Pa.  483 ;  Helm  v.  Van  Vleet,  1  Blackf.  (Ind.) 
342,  12  Am.  Dec.  248 ;  Savage  v.  Meriam,  1  Blackf.  (Ind.)  176. 

3  4  .Tones  v.  Snedecor,  3  Mo.  390. 

3  5  Hoggs  V.  Bard,  2  Rawlo  (Pa.)  102. 

86  Hickey  v.  Dallmeyer,  44  Mo.  237;    Smith  v.  Denny,  37  Mo.  20. 

37  Barre  Turnpike  Voviy.  v.  Appletou,  2  Pick.  (Mass.)  432;  Mowry 
V.  Adams,  14  Mass.  327. 


§  243  ACTION   OF   EXECUTOR8  245 

may  maintain  an  action  in  one  state  in  his  individual  capac- 
ity, upon  a  judgment  recovered  by  him  in  another  state  as 
administrator.^'*  If  an  administrator  is  charged  with  a  debt 
due  the  estate  which  has  not  been  paid,  he  may  sue  for  and 
recover  the  debt  in  his  representative  character.''"  And  if 
the  court  should  release  the  administrator  from  liability  for 
a  debt,  on  the  ground  that  it  had  been  improperly  inven- 
toried, this  is  no  defense  to  an  action  by  him  for  the  debt.^" 
In  a  suit  by  the  public  administrator  the  defendant  cannot 
require  him  to  show  that  the  facts  exist  which  authorize 
him  to  administer.*^ 

§  243.  Allegations  of  Representative  Capacity  in  Plead- 
ing.— As  before  stated,  when  an  administrator  or  executor 
sues  or  is  sued  in  his  representative  capacity,  this  capacity 
should  be  shown  by  giving  the  name  of  the  administrator 
(or  executor)    followed   with  a  description  "as  administrator 

(or  executor)  of  ,  deceased."     If  the  party  plaintiflf 

or  defendant  is  named  as  follows:    "John  Jones,  executor 

(or  administrator)  of  the  estate  of  ,  deceased,"  the 

word  "as"  being  omitted,  such  a  title  in  the  caption  will  not 
in  any  way  serve  as  an  aider  to  the  allegations  showing  rep- 
resentative capacity  required  in  the  body  of  the  petition.  It 
is  proper  for  the  petition  in  setting  forth  plaintiff's  right  to 
sue  as  administrator  to  allege  the  death  of  his  intestate,  his 
appointment  as  administrator  by  a  certain  court,  that  such 
court  had  probate  jurisdiction  in  the  county  in  which  intes- 
tate died  and  that  plaintiff  qualihed  and  was  acting  as  such 
administrator."*-  A  statement  in  a  petition  that  plaintiff 
sues  in  the  capacity  of  administrator  is  a  sufficient  allega- 
tion that  he  was  administrator.*-"* 

In  an  action  by  an  administrator  de  bonis  non  upon  a  con- 
tract not  made  with  him,  the  petition  should  state  the  name 
of  the  first  administrator,  and  should  contain  an  averment 
of  nonpayment  to  him,  and  if  the  debt  accrued  to  the  de- 

38  Hall  V.  Harrison,  21  Mo.  227.  (54  Am.  Dec.  225;  Slauter  v. 
Cheiiowith,  7  Ind.  211 :  Tahnaire  v.  Chapel,  16  Mass.  71  :  Campbell 
V.  Baldwin,  6  Blackf.  (Ind.)  3G4 ;  Tittman  v.  Thornton,  107  Mo.  500, 
17  S.  W.  979,  16  L.  R.  A.  410. 

3  9  Shore'.s  Adm'x  v.  Coons,  24  Mo.  553. 

4  0  Shore's  Adm'x  v.  Coons,  24  Mo.  553. 

41  Wetzell  V.  Waters,  IS  Mo.  396. 

42  Eans'  Adm'r  v.  Exchange  Bank  of  Jefferson  City,  79  Mo.  182; 
White  V.  McFarland.  148  Mo.  App.  .'!3S,  128  S.  W.  23. 

43  Dnncan's  Adm'r  v.  Duncan,  19  Mo.  368;  Dodson  v.  Scruggs,  47 
Mo.  285. 


246  ACTION    OF    EXECUTORS  §  243 

cedent,  the  petition  should  also  aver  that  the  money  had  not 
been  paid  to  the  decedent,  nor  to  the  plaintiff.''*  A  petition 
is  fatally  defective  where  plaintiff,  bringing  the  suit  as  ad- 
ministrator de  bonis  non,  alleges  in  his  petition  that  the  es- 
tate had  prior  to  plaintiff's  appointment  been  in  charge  of 
two  persons  as  administrator  and  then  alleges  that  the  let- 
ters of  one  of  said  persons  had  been  revoked  and  says  noth- 
ing about  the  other.* ^  The  form  of  caption  and  allegation 
of  appointment  of  executor  in  an  action  brought  in  this  rep- 
resentative capacity  may  be  as  follows: 

(Venue  and  Court.) 
J.  B..  as  Executor  of  the  Will  of 
R.  R.,  Deceased,  Plaintiff, 

vs. 
A.  B..  Defendant. 

Plaintiff  states  that  said  R.  R.,  in  his  lifetime,  made  and  published 
his  last  will,  whereby  he  named  the  plaintiff  as  executor  thereof; 

that  R.  R.  died   on  the  day  of  ,  19—,  at  ,  and 

that  on  the day  of ,  19 — ,  said  will  was  duly  admitted 

to  probate  in  the  probate  court  of  the  county  of  and  state 

of  ;  that  on  the  day  of  ,  19—,  letters  testa- 
mentary were  issued  on  the  said  will  to  plaintiff,  by  said  probate 
court,  and  that  plaintiff  duly  qualified  and  entered  upon  the  dis- 
charge of  his  duties  as  such  executor  and  is  now  acting  as  such 
executor. 

(State  cause  of  action.) 

The  caption  and  allegation  of  representative  capacity  in 
an  action  of  the  administrator  may  be  as  follows: 

(Venue  and  Court.) 
J.  B.,  as  Administrator  of  the  Estate  of 
R.  R.,  Deceased,  Plaintiff, 
vs. 
A.  B.,  Defendant. 

Plaintiff  states  that  on  the day  of ,  19—,  at 

the  said  R.  R.   died  intestate;   that  on  the  day   of  , 

19_,  letters  of  administration  upon  the  estate  of  said  R.  R.  were 

issued  by   the  probate  court  of  the  county  of  and  state  of 

to  this  plaintiff;  that  the  plaintiff  thereupon  duly  qualified 

as  such  administrator,  and  entered  upon  the  discharge  of  the  duties 
of  said  office,  and  said  letters  of  administration  have  not  been  re- 
voked. 

(State  cause  of  action.) 

44  Vanl)laricum  v.   Yeo,  2  Blackf.    (Tnd.)   .",22;    Griffith   v.   Fischli. 
4  Blackf.  (Ind.)  427. 

45  State,  to  Use  of  Ranney,  v.  Green,  65  Mo.  528. 


§  245  ACTION   OF   EXECUTORS  247 

It  should  be  remembered  that  the  ca})tion  is  simply  a  de- 
scriptio  personae  and  forms  no  part  of  the  statement  of  rep- 
resentative capacity  recpiircd  in  the  petition.*® 

Where  the  administrator  or  executor  sues  in  his  repre- 
sentative capacity  and  proper  allegations  showing  such  ca- 
pacity appear  in  the  petition  a  general  denial  does  not  put 
him  on  proof  of  his  appointment. '"^  His  authority  to  sue  in 
such  character  if  attacked  l)y  answer  should  be  by  means 
of  a  special  denial.*®  It  is  not  necessary,  however,  that  this 
special  denial  be  made  under  oath. 

§  244.  Actions  to  Collect  Rents. — In  general,  the  real  es- 
tate of  the  deceased  descends  to  his  heirs,  and  his  personal 
representative  cannc^t  maintain  an  action  to  recover  it,  or 
for  injury  done  it  after  the  death  of  the  deceased,*^  but  a 
lease  for  years  is  regarded  as  personal  estate,  and  goes  to 
the  representative ;  he  may  maintain  an  action  of  forcible 
entry  and  detainer,  therefore,  in  his  representative  charac- 
ter, to  recover  the  leased  premises. ^°  And  he  may  recover 
rents  due  to  the  deceased  by  the  same  remedy  the  deceased 
would  have  had  if  living.'^^  Rents  accruing  prior  to  the  an- 
cestor's death  belong  to  the  estate,  but  those  accruing  after 
his  death  pass  to  the  heirs. '^  So  if  the  deceased  was  a  ten- 
ant for  life,  and  left  the  premises  to  another,  he  may  recover 
the  rent  due  or  proportion  due  to  deceased  at  his  death. ^^ 

§  245.  Continuance  of  Actions  Commenced  by  Deceas- 
ed.— It  is  the  duty  of  an  executor  or  administrator  to  prose- 
cute and  defend  all  actions  commenced  by  or  against  the 
deceased,  and  pending  at  the  time  of  his  death,  and  which 
might  have  been  prosecuted  by  or  against  such  executor  or 
administrator.^*  If  the  action  does  not  al)ate  on  the  death 
of  either  party,  it  may  be  continued  by  or  against  the  per- 
sonal representative  of  the  deceased  party,  when  the  sub- 
ject matter  of  the  action  would  become  assets  in  his  hands. 

*6  Headlee  v.  Cloiul.  r.l  Mo.  .SOI. 

*^  Gross  v.  Watts,  20<>  Mo.  ?^73,  104  S.  W.  SO.  121  Am.  St.  Rep.  6G2. 

48  Gross  V.  Watts.  20(>  Mo.  373.  104  S.  W.  30.  121  Am.  St.  Rep.  602. 

49  Gamble  v.  Gibson.  59  Mo.  5S5;  Aubuchoii  v.  Lory,  23  Mo.  99; 
Sturseou  v.  Schaiunburs,  40  Mo.  4S2.  93  Am.  Dee.  311. 

•".0  Winninsliam  v.  Crouch,  2   Swan    (Tenu.)   170;  Rev.   St.  1909,  § 
7687 ;   T^ass  et  al.  v.  Eisleben,  50  Mo.  122. 
51  Rev.  St.  1909.  §  7875. 

5  2  Bealey  v.  Blake's  Adm'r.  70  Mo.  App.  229. 
53  Boale.v  v.  Blakos  Adm'r,  70  Mo.  App.  229. 

6  4  Rev.  St.  1909,  §  104. 


248  ACTION   OF   EXECUTORS  §  245 

If  the  cause  of  action  is  founded  upon  a  contract,  or  is  for 
a  wrong-  done  to  the  property,  rights  or  interest  of  another, 
the  action  survives  the  death  of  either  or  both  of  the  parties, 
and  may  be  maintained  by  the  representative  of  the  injured 
party  against  the  vi^rongdoer  or  his  representative."    Caus- 
es of  action  upon  which  suit  has  been  brought  by  the  injur- 
ed party  for  personal  injuries  other  than  those  resulting  in 
death,  whether  such  injuries  be  to  the  health  or  person  of 
the  injured  party  do  not  abate  by  reason  of  his  death,  nor 
by  reason  of  the  death  of  the  person  against  whom  such 
cause  of  action  shall  have  accrued ;  but  in  case  of  the  death 
of  either  or  both  such  parties,  such  cause  of  action  shall 
survive  to  the  personal  representative  of  the  injured  party 
and  against  the  person  or  corporation  liable  for  such  inju- 
ries or  their  legal  representatives.^^    The  liability  and  meas- 
ure of  damages  remain  the  same  as  if  such  death  or  deaths 
had  not  occurred."    By  statutory  enactment  since  1907  this 
has  been  the  law  in  Missouri.^^     Whenever  the  death  of  a 
person  shall  be  caused  by  the  wrongful  act  or  default  of  an- 
other and  the  act,  neglect,  or  default  is  such  as  would,  if 
death  had  not  ensued,  have  entitled  the  party  to  maintain 
an  action  and  recover  damages  therefor,  then  the  person 
who  or  the  corporation  which  would  have  been  liable  if 
death  had  not  ensued  shall  be  liable  to  an  action  for  damag- 
es, notwithstanding  the  death  of  the  person  injured. ^^    This 
action,  while  not  strictly  applicable  to  the  subject  here  un- 
der discussion,  in  case  deceased  leaves  no  husband,  wife, 
minor  child,  or  minor  children,  or  if  the  deceased  be  an  un- 
married minor  and  there  be  no  father  or  mother,  shall  be  in- 
stituted and  recovery  had  by  the  executor  or  administrator 
of  the  deceased.®"     Recovery,  however,  is  had  by  bringing 
in  an  entirely  new  action,  and  is  not  by  means  of  the  sur- 
vival of  an  action  instituted  before  the  death  of  the  deceas- 
ed.   Actions  for  slander,  libel,  or  false  imprisonment,  being 
personal  in  their  nature,  abate  on  the  death  of  either  party, 
and  cannot  be  prosecuted  by  or  against  the  representative."^ 

6  5  Rev.  St.  1909,  §  105. 

5  6  iiev.  St.  1909,  §  5438;  Gilkeson  v.  Missouri  Pac.  R.  Co.,  222  Mo. 
173.  121  S.  W.  13S,  24  L.  R,  A.  (N.  S.)  844,  17  Ann.  Cas.  763. 
5  7  Rev.  St.  1909,  §  5438. 

5  8  Laws  1907,  p.  252. 

6  9  Rev.  St.  1909,  §  5426. 

60  Rev.  St.  1909,  §§  5427  and  5425. 

61  Rev.  St.  1909,  §  lOG ;  Gilkeson  v.  Missouri  Pac.  R.  Co.,  222  Mo. 
173,  121  S.  W.  138,  24  L.  R.  A.  (N.  S.)  844,  17  Ann.  Cas.  763. 


§  246  ACTION   OF   EXECUTORS  249 

The  manner  of  reviving  an  action  for  or  against  the  rep- 
resentative of  a  deceased  party  is  matter  of  practice  in  the 
court  where  the  action  is  pending,  and  does  not  come  with- 
in the  scope  of  this  work. 

§  246.  Actions  by  Personal  Representative  for  Wrong- 
ful Death  of  Decedent. — A  new  class  of  actions  brought  by 
the  executor  or  administrator  has  grown  to  considerable  im- 
portance in  Missouri  witiiin  the  last  few  years.  At  common 
law  actions  in  tort  did  not  survive  the  death  of  either  the 
wronged  or  the  wrongdoer.*"^  Prior  to  the  amendments  in 
1905  and  1907  of  the  sections  of  the  statutes  of  Missouri, 
comprising  what  is  popularly  called  the  "Damage  Act,"  an 
executor  or  administrator  could  not  maintain  actions  on  the 
case  for  injuries  to  the  person  of  the  testator  or  the  intes- 
tate. Neither  did  the  right  of  action  given  to  surviving  hus- 
band, wife  or  child  by  the  Damage  Act,  which  was  mainly 
a  re-enactment  of  the  well-known  Lord  Campbell's  Act,  9 
and  10  Vict.,  create  in  the  person  entitled  to  sue  in  tort  for 
the  death  of  another  such  a  property  right  as  would  descend 
to  the  administrator  or  executor  or  the  person  or  persons  so 
entitled  to  maintain  the  action.  Missouri  courts  held  that 
the  death  of  the  beneficiary  discharged  the  wrongdoer.®^  In 
1905,  section  2864  of  the  Revised  Statutes  of  1899,  now  sec- 
tion 5425,  Revised  Statutes  of  1909,  was  amended  by  the  in- 
sertion of  the  following  clause :  "If  there  be  no  husband, 
wife,  minor  child  or  minor  children,  natural  born  or  adopt- 
ed, as  hereinbefore  indicated,  or  if  the  deceased  be  an  un- 
married minor  and  there  be  no  father  or  mother,  then  in 
such  case  suit  may  be  instituted  and  recovery  had  by  the 
administrator  or  executor  of  the  deceased,  and  the  amount 
recovered  shall  be  distributed  according  to  the  laws  of  dcr 
scent."  ®*  The  effect  of  this  amendment  was  to  give  under 
the  circumstances  indicated  the  administrator  or  executor  a 
cause  of  action  for  death  of  testator  or  intestate,  where  this 
death  resulted  from  an  injury  occasioned  by  the  negligence 
or  criminal  intent  of  any  operator  engaged  in  running,  con- 
ducting or  managing  a  public  conveyance.  This  section  of 
the  statutes  permits  a  verdict  between  $2,000  and  $10,000  to 

6  2  Bates  V.  Sylvester,  20.5  Mo.  496,  104  S.  W.  73,  11  L.  R.  A.  (N.  S.) 
1157,  120  Am.   St.  Rep.  71)1.  12  Ann.  Cas.  457. 

6  3  Gilkeson  v.  Missouri  Pae.  R.  Co..  222  Mo.  173,  121  S.  W.  138, 
24  L.  R.  A.  (N.  S.)  844,  17  Ann.  Cas.  763. 

6  4  Laws  1905,  p.  135. 


250  ACTION   OF   EXECUTORS  §  246 

be  recovered  as  a  penalty,  not  as  compensatory  damages. 
This  amendment  had,  however,  a  more  far-reaching  effect 
through  the  following  sections  of  the  statute,  to  wit,  sec- 
tions 5426  and  5427,  Revised  Statutes  of  1909: 

Section  5426.  When  representative  may  sue.— Whenever  the 
death  of  a  person  shall  be  caused  by  a  wrongful  act,  neglect  or  de- 
fault of  another,  and  the  act,  neglect  or  default  is  such  as  would, 
if  death  had  not  ensued,  have  entitled  the  party  injured  to  maintain 
an  action  and  recover  damages  in  respect  thereof,  then,  and  in  every 
such  case,  the  person  who  or  the  corporation  which  would  have 
been  liable  if  death  had  not  ensued  shall  be  liable  to  an  action  for 
damages,  notwithstanding  the  death  of  the  person  injured. 

Section  5427.  Damages,  by  whom  recovered — Measure  of. — 
Damages  accruing  under  the  last  preceding  section  shall  be  sued 
for  and  recovered  by  the  same  parties  and  in  the  same  manner  as 
provided  in  section  5425;  and  in  every  such  action  the  jury  may 
give  such  damages,  not  exceeding  ten  thousand  dollars,  as  they 
may  deem  fair  and  just,  with  reference  to  the  necessary  injury  re- 
sulting from  such  death,  to  the  surviving  parties  who  may  be  en- 
titled to  sue,  and  also  having  regard  to  the  mitigating  and  ag- 
gravating circumstances  attending  such  wrongful  act,  neglect  or 
default. 

The  effect  of  the  two  last  named  sections  is  to  give  to  the 
personal  representative,  if  there  be  no  husband,  wife,  minor 
child,  minor  children,  natural  born  or  adopted,  or  if  the  de- 
ceased be  an  unmarried  minor  and  there  be  no  father  or 
mother,  the  right  of  action  for  death  of  testator  or  intestate 
resulting  from  tortious  act  of  another.  The  damages  recov- 
erable shall  not  exceed  $10,000  and  are  compensatory  in 
their  nature.  In  other  words,  if  the  nonexistence  of  the 
above  named  relatives  of  the  deceased  permits  his  executor 
or  administrator  to  sue,  and  if  the  death  of  the  decedent 
was  not  the  result  of  the  negligence  or  criminal  intent  of 
any  operator  engaged  in  running,  conducting  or  managing 
a  public  conveyance,  it  is  incumbent  upon  the  executor  or 
administrator  to  plead  and  to  prove  the  damage  suffered  by 
the  relatives  of  the  deceased  to  whom  the  amount  recovered 
would  go  under  the  laws  of  descent."^  On  the  other  hand, 
if  death  is  occasioned  by  the  negligence  of  one  engaged  in 
the  operation  of  a  public  conveyance  and  the  circumstances 
as  above  indicated  are  such  that  the  cause  of  action  is  given 
to  the  personal  representative,  it  is  not  incumbent  upon  him 

66  Nicholas  v.  Kelley,  159  Mo.  App.  20,  139  S.  W.  248;  Overby  v. 
Mears  Min.  Co.,  144  Mo.  App.  363,  128  S.  W.  813 ;  Morgan  v.  Oronogo 
Circle  Min.  Co.,  160  Mo.  App.  99,  141  S.  W.  735. 


§  246  ACTION   OF   EXECUTORS  251 

to  show  actual  damage  suffered  by  those  who  take  the  pro- 
ceeds of  the  suit  under  the  laws  of  descent,  as  within  the 
limits  from  $2,000  to  $10,000  the  jury  may  in  its  discretion 
render  its  verdict  against  the  defendant  as  a  penalty  for  the 
wrongful  act  of  its  oftlcer,  agent,  or  employe.""  Thus  there 
is  a  fundamental  difference  in  the  matter  of  damages  deter- 
mined by  the  circumstances  and  the  character  of  the  negli- 
gence which  caused  the  death :  In  the  one  case  the  verdict  is 
to  be  rendered  for  compensatory  damages  not  to  exceed  $10," 
000;  in  the  other  case  the  amount  recovered  is  a  penalty  be- 
tween and  within  the  limits  of  $2,000  and  $10,000,  resting 
in  the  discretion  of  the  jury.  To  bring  the  case  within  the 
section  relating  to  death  by  reason  of  the  negligence  of  the 
operator  of  a  public  conveyance,  this  negligence  must  have 
occurred  "while  the  operator  was  actually  engaged  in  run- 
ning, conducting  or  managing  such  conveyance."  It  has 
been  held  that,  where  death  came  to  a  station  agent's  helper 
under  the  wheels  of  a  passing  train  as  a  result  of  a  negli- 
gent and  careless  order  given  by  the  station  agent,  the  neg- 
ligence was  not  that  of  one  to  be  brought  under  section 
5425,  Revised  Statutes  of  1909,  but  under  sections  5426  and 
5427.^'"  In  a  recent  case  it  has  been  held  that,  while  the 
damages  under  section  5425  are  recoverable  as  a  penalty, 
they  are  compensatory  as  well,  and  where  the  suit  is  insti- 
tuted by  the  widow,  evidence  is  admissible  to  show  the  ages 
of  the  minor  children  and  the  natural  expectancy  of  life  of 
the  deceased  husband,  according  to  the  Carlisle  or  Ameri- 
can experience  tables  of  mortality."*  The  question  of  dam- 
ages recoverable  by  the  administrator  or  executor  is  one  of 
some  difficulty,  as  necessarily,  in  order  to  entitle  the  person- 
al representative  to  institute  the  action,  the  deceased  must 
have  left  no  relatives  who  would  likely  have  been  dependent 
upon  him  for  support,  as  the  husband,  wife,  minor  child  or 
minor  children  of  the  deceased,  or  if  the  deceased  was  an 
unmarried  minor,  the  father  or  mother  must,  if  living,  bring 
the  action.  It  would  be,  in  the  majority  of  cases,  often  dif- 
ficult to  show  that,  outside  of  those  named,  other  relatives 

66  O'Conuell  v.  Missouri  Tac.  R.  Co.,  149  Mo.  App.  501,  131  S.  W. 
117;  Childres.«i  v.  Soutlnvost  Missouri  R.  Co..  141  :Mo.  App.  GG7.  126 
S.  W.  109 ;   Ellis  v.  Metropolitan  St.  R.  Co..  234  Mo.  057,  13S  S.  W.  23. 

07  Gray  v.  AVabash  R.  Co.,  157  Mo.  App.  92.  137  S.  W.  324. 

cs  Boyd  V.  Missouri  I'ac.  R.  Co..  2.30  Mo.  54.  1.39  S.  W.  501;  Collins 
V.  Star  Taper  Mill  Co.,  143  Mo.  App.  .3.33,  127  S.  W.  041;  Chambers 
V.  Kupper-Benson  Hotel  Co.,  154  Mo.  App.  249,  134  S.  W.  45. 


252  ACTION    OF    EXECUTORS  §  246 

suffer  substantial  pecuniary  loss  on  account  of  the  death. 
From  this  it  follows  that  suits  brought  by  the  administra- 
tor and  executor  for  wrongful  death  of  the  testator  or  intes- 
tate should,  if  the  facts  permit,  be  brought  under  section 
5425,  as  the  statutory  amount  recoverable  is  not  compensa- 
tion for  a  pecuniary  loss  and  can  be  recovered  whether  or 
not  any  pecuniary  loss  has  been  sustained.  This  section  al- 
so abrogates  the  fellow-servant  doctrine  of  the  common  law 
where  the  death  of  a  fellow  employe  is  occasioned  by  the 
negligence  of  one  engaged  in  operating  a  public  conveyance. 
In  discussing  this  subject  the  term  "public  conveyance"  has 
been  used  for  the  sake  of  brevity.  The  section  above  refer- 
red to  is  itself  somewhat  broader  in  its  phraseology.  It  has 
been  held  that  as  the  section  refers  to  death  "resulting  or 
occasioned  by  the  negligence,  unskillfulness  or  criminal  in- 
tent of  any  officer,  agent,  servant  or  employe,  whilst  engag- 
ed in  running,  conducting,  or  managing  any  locomotive,  car 
or  train  of  cars,"  that  it  applied  to  the  death  of  section  hand 
as  a  result  of  the  negligent  management  of  a  hand-car  by 
the  section  foreman.*^"  In  determining  the  question  wheth- 
er or  not  the  cause  of  action  is  one  under  section  5425  or  un- 
der sections  5426  and  5427,  reference  should  be  had  in  all 
cases  to  the  sections  themselves  as  amended  by  the  Legis- 
lature of  1911  (Laws  1911,  p.  203,  §  1)  and  to  the  latest  de- 
cisions of  the  courts  construing  the  same. 

The  foregoing  observations  on  action  in  tort  based  on 
personal  injury  resulting  in  death  brought  by  the  personal 
representative  of  the  injured,  incomplete  as  they  are  and 
based  upon  recent  judicial  opinions  of  courts  of  last  resort, 
do  not  in  the  writer's  mind  express  the  final  conclusions 
courts  will  reach  upon  this  subject,  even  granting  the  statu- 
tory law  remains  unchanged.  The  frequent  and  radical 
changes  to  which  these  sections  of  our  statutes  have  been 
subjected,  the  ambiguity  and  uncertainty  in  the  phraseolo- 
gy and  meaning  of  some  of  the  amendments,  have  necessari- 
ly produced  a  more  or  less  chaotic  condition  of  the  law  re- 
lating to  this  subject.  The  length  of  time  that  has  elapsed 
since  these  amendments  w^ere  incorporated  in  the  statutes 
permitting  the  executor  or  administrator  to  sue  in  such  cas- 
es has  not  been  sufficient  to  give  the  courts  opportunity  to 
determine  their  exact  meaning  through  judicial  construc- 
tion.     For    instance,    the    apparently    diverse    conclusions 

6  8  Boyd  V.  Missouri  Pae.  R.  Co.,  236  Mo.  .j4,  1.39  S.  W.  5G1. 


§  246  ACTION  or  executoes  2o3 

reached  by  the  Courts  of  Appeals  and  the  Supreme  Court 
in  Missouri,  in  opinions  touchinj^  certain  phases  of  this 
question,  and  the  refusal  of  the  courts  in  a  number  of  cases 
where  the  decision  of  the  particular  case  could  rest  on  other 
grounds  to  determine  the  meaning  and  proper  construction 
of  certain  clauses  in  these  sections  of  the  statutes  until  the 
points  involved  were  more  fully  briefed,  would  justify  the 
belief  that  the  law  in  regard  to  these  matters  has  not  reach- 
ed a  settled  state.'^"  We  find  the  following  provision  in  sec- 
tion 5427:  "In  every  such  action  the  jury  may  give  such 
damages  not  exceeding  ten  thousand  dollars  as  they  may 
deem  fair  and  just  with  reference  to  the  necessary  injury  re- 
sulting from  such  death  to  the  surviving  parties  who  may 
be  entitled  to  sue  [under  section  5425]  and  also  having  re- 
gard to  the  mitigating  and  aggravating  circumstances  at- 
tending such  wrongful  acts,  neglect  or  default."  The  latest 
construction  that  is  placed  upon  these  words  by  the  Su- 
preme Court  as  above  indicated  is  that  the  damages  recov- 
erable thereunder  are  purely  compensatory  and  must  be 
predicated  upon  evidence  showing  the  pecuniary  loss  the 
persons  entitled  to  sue  would  sustain  by  reason^  of  the 
death. '^^  But  if  a  strict  construction  were  given  to  the  lan- 
guage used  in  the  statute  where  the  administrator  or  execu- 
tor is  the  only  surviving  party  entitled  to  sue,  the  result 
would  be  that  no  damages  could  be  recovered  because  no 
evidence  could  show  that  he  personally  was  damaged  by 
reason  of  the  wrongful  death  of  the  deceased.  If  the  pres- 
ent construction  of  this  phase  of  the  law  by  the  courts  is  to 
be  adhered  to,  and  the  amount  of  recovery  to  be  gauged  in 
a  suit  brought  by  the  administrator  or  executor  under  this 
section  by  the  pecuniary  loss  suffered  by  those  to  whom  the 
estate  would  go  under  the  laws  of  descent,  why  should  we 
not  consider  the  loss  suffered  by  creditors  of  the  deceased 
through  his  death  as  well  as  the  loss  resulting  to  collateral 
relatives?  It  has  been  held  in  Missouri  and  other  states 
that  statutes  permitting  recovery  in  case  of  wrongful  death 
are  for  the  benefit  of  those  dependent  on  deceased  and  not 
for  the  relief  of  creditors.    It  has  been  held  that  under  this 

7  0  Ervin  v.  St.  Louis.  I.  M.  &  S.  R.  Co.,  158  Mo.  App.  1,  139  S.  W. 
498 ;  Boyd  v.  Missouri  Piic.  R.  Co.,  23fi  Mo.  54.  139  S.  W.  561 ;  Heg- 
bdrg  V.  St.  Louis  &  S.  F.  R.  Co.,  1G4  :Mo.  App.  514,  147  S.  W.  192; 
Young  V.  St.  Louis,  L  ISL  &  S.  R.  Co.,  227  Mo.  .•'.07.  127  S.  W.  19. 

Ti  Nicholas  v.  Kelloy.  159  INIo.  App.  20.  i;^>0  S.  W.  248;  Boyd  v. 
Missouri  Tac.  R.  Co.,  236  Mo,  54,  139  S.  W.  561. 


254'  ACTION   OF   EXECUTORS  §  247 

section  solatium  or  the  mental  anguish  from  loss  of  com- 
panionship, etc.,  sufterecl  by  the  relatives  of  the  deceased, 
and  occasioned  by  his  death,  is  not  provable  as  damages 
thereunder.''^ 

§  247.  Security  for  Costs  Not  Required. — It  seems  that 
an  executor  or  administrator  cannot  sue  in  forma  pauperis 
(as  a  poor  person)  on  account  of  the  insolvency  of  the  estate. 
It  has  been  held  in  Tennessee  that  the  privilege  conferred  by 
the  law  is  merely  personal. ^^  Perhaps  the  same  construction 
should  be  given  to  our  statute  on  the  subject.  As  a  general 
rule,  however,  he  is  not  required  to  give  bond  for  costs  when 
he  sues  in  his  representative  capacity.'"*  If  he  fails  in  the 
action,  the  judgment  should  be  against  him  in  his  representa- 
tive capacity,  to  be  satisfied  out  of  the  estate. 

§  248.  Set-Off,  When  Allowed.— The  right  of  set-off  de- 
pends upon  the  provisions  of  the  statute ;  it  was  not  allowed 
at  common  law.'^^  We  must,  therefore,  look  to  the  statute  for 
the  cases  and  circumstances  under  which  it  is  allowed  in  an 
action  by  or  against  an  administrator  or  executor.  It  is  en- 
acted by  statute  that  "in  suits  brought  by  administrators  and 
executors,  debts  existing  against  their  intestate  or  testator, 
and  belonging  to  the  defendant  at  the  time  of  his  death,  may 
be  set  off  by  the  defendant  in  the  same  manner  as  if  the  action 
had  been  brought  by  and  in  the  name  of  the  deceased ;  but  no 
demand  against  an  executor  or  administrator,  in  his  own  in- 
dividual capacity,  shall  be  allowed  as  a  set-off  against  any  debt 
or  damages  sued  for  by  such  executor  or  administrator,  upon 
a  contract  made  by  him  in  his  representative  capacity,  whether 
the  contract  shows  the  representative  capacity  in  which  he  con- 
tracted or  not."  ^*'  This  provision  is  limited  in  its  application 
to  cases  where  the  suit  is  brought  by  an  executor  or  admin- 
istrator directly  against  a  person  who  has  a  cause  of  action 
which  accrued  in  the  lifetime  of  the  testator  or  intestate," 
and  then  it  can  only  be  allowed  under  circumstances  permitting 
it,  if  the  action  had  been  brought  by  or  in  the  name  of  the  de- 

7  2  Nicholas  V.  Kelley,  159  Mo.  App.  20.  1.39  S.  W.  248. 

7  3  McCoy  V.  Broderick,  3  Sneed  (Teiiu.)  203. 

7  4  lioss  V.  Alleman,  60  Mo.  269. 

7  5  McKinney  v.  Bellows,  3  Blackf.  (Ind.)  31. 

7c  Eev.  St.  3909,  §  1868;  Sanford  v.  Foss,  .^)S  Mo.  App.  474;  Dpvore 
V.  Devore,  138  Mo.  181,  39  S.  W.  68 ;  In  re  Jarboe's  Estate,  227  :Mo. 
59,  127  S.  W.  26. 

77  White  V.  Henly,  54  Mo.  592;  Vastine  v.  Diuan,  42  Mo.  269. 


§  249  ACTION   OF   EXECUTORS  255 

ceased.  A  debt  due  to  defendant  as  guardian  cannot  be  set 
off  by  him  a,L;ainst  a  debt  he  owes  individually.^" 

§  249.  Same— A  Few  Illustrations.— If  the  action  is  on  a 
demand  which  accrued  to  the  executor  in  his  representative 
character,  after  the  testator's  death,  the  defendant  cannot  set 
off  a  claim  in  his  favor  which  accrued  against  the  deceased  in 
his  lifetime.'"  Nor  can  he  set  oft'  a  demand  which  he  holds 
against  the  executor  in  his  personal  capacity;  *°  nor  can  a  debt 
payable  in  work  be  set  off ;  "  nor  is  a  set-off  admissible  where 
the  claim  of  either  party  is  for  unlicjuidated  damages."^  A  joint 
demand  cannot  be  set  off  against  a  separate  debt;  "^  but  in  an 
action  against  one  or  more  joint  obligors  or  promisors,  any 
debt  or  demand  due  from  the  plaintiff  to  the  defendant  in  the 
action,  or  to  all  the  obligors  or  promisors  in  the  contract  sued 
upon,  may  be  set  off  against  the  demand  of  the  plaintiff.''*  A 
debt  due  to  a  partnership  cannot  be  set  off  against  a  debt 
due  by  an  individual  partner ;  "••"'  nor  can  one  partner  set  off 
a  debt  against  the  partners  before  settlement,  against  a  sep- 
arate demand  of  the  other  partner.^^  But  if  goods  furnished 
by  the  partnership  be  charged  to  the  individual  partner,  and 
by  him  furnished  to  the  plaintiff",  the  debt  may  be  set  off 
against  the  plaintiff's  demand."^ 

It  has  not  been  decided  in  Missouri  that  the  probate  court 
has  power  without  the  consent  of  the  parties  to  refer  to  a  ref- 
eree matters  involving  the  investigation  of  long  accounts. 
It  has  been  held  that  where  a  reference  is  had  by  consent  that 
a  judgment  rendered  in  accordance  with  the  referee's  report 
is  binding.^^ 

78  Smallwood  v.  Lafayette  County,  75  Mo.  450. 

7  0  Woodward  v.  McGaugh,  8  Mo.  162. 

80  Lessing  v.  Vertrees,  32  Mo.  431. 

81  Evans  v.  Wilder,  7  Mo.  359. 

82  Johnson  v.  Jones,  IG  Mo.  494;  Mahan  v.  Eoss,  18  Mo.  121;  Pratt 
V.  Menkens,  IS  Mo.  15S ;  Gates  v.  Clavadetscber,  19  Mo.  125;  State 
ex  rel.  Gilbert  v.  Eldridge.  05  Mo.  5S4. 

83  Slviuuer  v.  Henderson.  10  Mo.  207. 

8  4  Rev.  St.  1909.  §  1870;  Austin  v.  Feland.  8  Mo.  309;  Kent  v. 
Rogers,  24  Mo.  306 ;  Lamb  v.  Brolaski,  38  Mo.  51 ;  Moser  v.  Lower, 
48  Mo.  App.  85 ;  Weil  v.  Jones,  70  Mo.  500 ;  State,  to  Use  of  Keudritk, 
V.  Hudson,  86  Mo.  App.  501. 

65  Lamb  v.  Brolaski,  38  Mo.  51;  Weil  v.  Jones,  70  Mo.  500. 
80  Skinner  v.  Henderson,  10  Mo.  207. 

87  Lamb  v.  Brolaski.  38  Mo.  51. 

88  In  re  Jarboe's  Estate,  227  Mo.  59,  127  S.  W.  2G. 


256  ACTION   OF   EXECUTOES  §  250 

§  250.     Suit  Before  Justice — Judgment  for  Excess,  etc. — 

When  a  set-off,  exceeding  the  amount  of  the  plaintiff's  demand, 
is  established  in  a  suit  brought  before  a  justice  of  the  peace  by 
an  executor  or  administrator,  the  judgment  for  the  defendant 
must  be  against  the  plaintiff  in  his  representative  character, 
and  will  be  evidence  of  a  debt  established  against  the  estate, 
but  no  execution  can  issue  thereon.  In  such  case,  a  transcript 
of  the  judgment  may  be  presented  to  the  court,  and  allowed 
against  the  estate,  and  classed  as  ordinary  demands. ^^ 

This  subject  of  set-off  will  be  noticed  again  when  we  treat 
of  the  allowance  of  claims  against  estates.  We  may  suggest 
here,  however,  that  it  would  be  safer  and  better  for  debtors 
to  always  set  off  against  what  they  owe,  any  claim  which  they 
may  have  against  the  deceased,  for  if  they  do  not,  they  will 
run  the  risk  of  losing,  in  the  event  the  estate  turns  out  in- 
solvent, and  moreover,  will  be  compelled  to  pay  the  full  amount 
they  owe  the  estate  long  before  they  will  be  able  to  receive  the 
amount  of  their  claims  against  it. 

§  251.  When  the  Executor  or  Administrator  Owes  the 
Deceased. — At  common  law^,  if  the  testator  appointed  his 
debtor  executor  of  his  will,  the  debt  was  thereby  discharged, 
but  now  such  appointment  does  not  discharge  the  debt.  In- 
deed, all  debts  due  from  an  executor  or  administrator,  to  his 
testator  or  intestate,  must  be  considered  assets  in  his  hands,  to 
be  accounted  for  in  the  settlement  of  administration  with  the 
court;  ^"^  and  it  is  immaterial  that  the  debt  is  a  partnership  one, 
as  each  member  is  liable  individually  for  the  obligations  of 
the  firm.®^  Such  indebtedness  is  not  to  be  considered  as  cash 
in  his  hands,  for  which  his  bondsmen  would  be  liable  at  all 
events,  but  it  stands  on  a  footing  with  other  claims  to  wdiich 
insolvency  may  be  an  excuse  for  not  paying."- 

§  252.  When  Liable  for  Interest,  etc. — All  interest  re- 
ceived on  debts  due  to  the  deceased  by  an  executor  or  adminis- 
trator is  assets  in  his  hands;  and  if  he  loan  the  money  of  de- 
ceased or  use  it  for  his  own  private  purposes,  he  must  pay  in- 
terest thereon  to  the  estate.  The  court  must,  at  each  settle- 
ment, exercise  an  equitable  control  in  making  executors  and 
administrators  account  for  such  interest,  and  for  that  purpose 

8  9  Rev.  St.  1909,  §§  7449,  74.50. 
80  Rev.  St.  19rX).  §§  107,  108. 
91  Eaton  V.  Walsh,  42  Mo.  272. 

02  McCarty  v.  Frazer,  62  Mo.  2C)P>;  Tonng  v.  Thrasher,  48  Mo.  App. 
327 ;  Wilson  v.  Ruthrauff,  82  Mo.  App.  435. 


§  255  ACTION   OF    EXECUTORS  257 

may  take  testimony  or  examine  the  executor  or  administrator 
on  oath  in  relation  to  the  same."^  If  it  appears  that  the  ad- 
ministrator has  misapplied  the  assets  or  used  them  for  his  own 
purposes,  he  should  be  charged  with  interest  at  eight  per  cent, 
per  annum,  compounded  or  calculated  w-ith  annual  rests ;  and 
a  failure  to  account  raises  a  presumption  of  such  use.®* 

§  253.  Administrator  May  Loan  Money  of  the  Estate. — 
And  if,  on  the  return  of  the  inventory,  or  at  any  other  time, 
the  court  shall  be  satisfied  that  there  is  a  surplus  of  money  on 
hand  which  will  not  be  shortly  required  for  the  expenses 
of  administration  or  payment  of  debts,  it  may  order  the  ex- 
ecutor or  administrator  to  loan  it  on  such  terms  and  for  such 
time  as  may  be  deemed  best."° 

§  254.  Court  May  Make  All  Necessary  Orders,  etc. — 
The  court  may  at  any  time  make  such  orders  as  the  interest  of 
the  estate  may  require  for  the  speedy  collection  of  debts,  or 
the  sale  and  distribution  of  personal  property.'-"^ 

§  255.  Competency  of  Witnesses  in  Action,  by  or 
Against  Executors  and  Administrators. — .\n  executor  or 
administrator  is  a  competent  witness  in  any  action  prosecuted 
or  defended  by  him  as  such.  The  statute  provides  that  no  per- 
son shall  be  disqualihed  as  a  witness  in  any  civil  suit  or  pro- 
ceeding at  law  or  in  equity,  by  reason  of  his  interest  in  the 
result  of  the  same  as  a  party  or  otherwise,  but  such  interest 
may  be  shown  for  the  purpose  of  affecting  his  credibility.  But 
in  actions  where  one  of  the  original  parties  to  the  contract  or 
cause  of  action  in  issue  and  on  trial  is  dead,  or  is  shown  to  the 
court  to  be  insane,  the  other  party  shall  not  be  admitted  to 
testify  in  his  own  favor ;  and  where  an  executor  or  admin- 
istrator is  a  party,  the  other  party  shall  not  be  admitted  to 
testify  in  his  own  favor,  unless  the  contract  in  issue  was 
originally  made  with  a  person  who  is  living  and  competent 
to  testify,  except  as  to  such  acts  and  contracts  as  have  been 
done  or  made  since  the  prol^ate  of  the  will,  or  the  appointment 
of  the  administrator.  But  in  an  action  for  the  recovery  of  any 
sum  for  balance  due  on  account,  and  when  the  matter  at  issue 
and  on  trial  is  proper  matter  of  book  account,  the  party  living 

9  3  Rev.  St.  1909,  §§  231,  232. 

84  Albert  v.  Sanford,  201  Mo.  117.  99  S.  W.  IOCS;  Criice  v.  Cruce, 
81  Mo.  67G:  Myers  v.  Myers.  98  Mo.  262,  11  S.  W.  617;  Green  v. 
Hussey,  90  Mo.  App.  295,  70  S.  W.  150. 

95  Rev.  St.  1909,  §  111.  »c  Rev.  St.  1909,  §  112. 

KEL.MO.P.G.— 17 


258  ACTION   OF   EXECUTORS  §  255 

may  be  a  witness  in  his  own  favor,  so  far  as  to  prove  in  whose 
hand  writing  his  charges  are  and  when  made,  and  no  further.^' 
The  intention  of  this  provision,  as  interpreted  by  the  Supreme 
Court,  is  that  where  the  testimony  of  one  of  the  parties  to  the 
transaction,  or  cause  of  action,  or  defence,  is  placed  beyond 
reach  by  death  or  insanit\-,  the  testimony  of  the  other  party 
is  shut  out,  so  as  to  preserve  as  far  as  possible,  an  equality  of 
position  between  them.^**  And  where  property  in  charge  of 
an  administrator,  belonging  to  the  estate,  is  stolen,  or  lost,  no 
testimony  being  lost  by  reason  of  the  death  of  the  intestate, 
the  administrator  is  not  within  the  reason  of  the  exceptions 
named  in  the  section,  and  is  not  excluded  from  testifying  be- 
cause of  it.^^  In  proceedings  against  an  administrator  for  em- 
bezzling assets,  he  is  a  competent  witness, ^""^  but  he  cannot 
testify  to  conversations  or  transactions  had  by  him  with  the 
deceased. ^**^  And  in  transactions  with  an  administrator  the 
party  thereto  is  a  competent  witness;  ^"'-  and  also  as  to  matters 
transpiring  after  the  death  of  the  deceased,  and  as  to  acts  done 
or  contracts  made  after  the  probate  of  the  will  or  grant  of 
letters  of  administration. i"-'  But  where  the  husband  was 
plaintiff  in  a  suit  against  the  heirs  of  his  deceased  wife  to  im- 
press a  trust  upon  real  estate  conveyed  to  her  but  paid  for 
with  his  money,  it  was  held  that  he  was  not  a  competent  wit- 
ness to  contradict  statements  attributed  to  him  by  other  wit- 
nesses nor  for  any  purpose.''*'*  But  such  a  party  might  testify 
as  to  transactions  with  others  to  which  the  deceased  was  not  a 
party  and  with  which  he  had  no  connection  and  of  which  he 
had  no  knowledge.'**^  When  the  contract  or  transaction  was 
between  an  agent  of  one  of  the  parties  to  the  suit  and  the 
other  party,  and  the  agent  is  dead,  the  living  party  is  incom- 

97  Rev.  St.  1909,  §§  6354,  6355. 

8«Hisaw  V.  Sigler,  68  Mo.  449;  Weiland  v.  Weyland,  64  Mo.  168; 
Sitton  V.  Shipp,  65  Mo.  297 ;  Ring  v.  Jamison,  66  Mo.  4'_'4 ;  Amonett 
V.  Montague.  63  Mo.  201:  State  ex  rel.  Seely  v.  Huff,  63  Mo.  288:  Kss 
V.  Griffith,  139  Mo.  322,  40  S.  W.  930;  Crow  v.  Crow,  124  Mo.  App. 
120,  100  S.  W.  1123. 

'■<'J  State  ex  rel.  Townshend  v.  Meagher,  44  Mo.  356,  100  Am.  Dec. 
298. 

100  Stewart  v.  Glenn,  58  Mo.  481. 

101  Tygard  v.   Falor.   163  Mo.  2:U.  63    S.  W.  672. 

102  McGlothlin  v.  Ilemry,  59  Mo.  213;  Callahan  v.  Riggius,  43  Mo. 
App.  130. 

103  Leeper  V.  Taylor,  111  Mo.  312.  19  S.  W.  955. 

104  Curd  V.  Brown,  148  Mo.  82,  49  S.  W.  990. 
losKyerraanu  v.  Piron,  151  Mo.  107,  52  S.  W.  107. 


§  255  ACTION   OF   EXECUTORS  25t) 

jjetent  to  testify  to  any  transaction  had  with  such  agent. ^'^'* 
l)Ut  if  the  party  for  whom  the  aj,'cnt  acted  he  dead  and  tiie 
agent  is  living,  the  other  party  may  testify.^"'  Where  a  con- 
tract was  made  with  two  persons  jointly,  and  one  is  dead,  the 
surviving  jjarties  to  it  may  testify.^"*  So  where  the  party 
was  competent  at  common  law,  he  may  now  testify,  notwith- 
standing tlie  dcatli  of  the  otlier  party. ^"" 

An  officer  of  a  corporation  or  a  stockholder  was  a  com- 
petent witness  in  its  hehalf  at  common  law,  and  he  may  testify 
as  to  all  independent  facts  in  controversy,  though  not  as  to 
negotiations  hetween  himself  and  the  deceased.' '" 

The  objection  as  to  incom])etcncy  may  be  waived  by  the  par- 
ties interested,  and  it  is  waived  if  the  party  having  the  right 
to  object  fails  to  do  so,  or  by  cross-examination  calls  out  the 
objectionable  matter,' ''  or  makes  the  witness  his  own  as  to 
new  matter,  or  by  taking  and  filing  his  deposition  in  the  case, 
though  he  did  not  offer  to  read  it."^ 

100  ii,,iiin:inn  v.   I.Mii-c.  14:;  Mo.  100,  44  S.   W.  752;  Kului  v.   Ger- 
niania   Life  Ins.  Co..  71  Mo.  App.  ''>0i>. 
If'  Weary  v.  Wittiiier,  77  Mo.  App.  546. 
los  fulkersou  v.  Thonitoii.  (JS  Mo.  4G8. 

109  Angell  V.  Hester,  64  Mo.  142;  Kulm  v.  Gerniania  Life  Ins.  Co., 
71  Mo.  App.  o05;  Baf^uell  v.  Chemical  Bank  of  Sweet  Springs,  7G 
Mo.  App.  121. 

110  Kulin  V.  Gerniania  Life  Ins.  Co..  71  Mo.  App.  .305. 

111  Unme  v.  Hopkins,  140  Mo.  65,  41  S.  W.  784. 

112  In  re  Soulard's  Estate.  141  Mo.  642.  4.3  S.  W.  617;  Borgess  Inv. 
Co.  V.  Yette,  142  Mo.  560,  44  S.  W.  754,  64  Am.  St.  Rep.  567 ;  Hoehn 
V.  Stnittnuinn.  71  Mo.  App.  .309. 


260  ALLOWANCE   OF   DEMANDS  §  256 

CHAPTER  XXII 
ALLOWANCE  OF  DEM5ANDS  AGAINST  ESTATES 

§  2dG.  Speedy  settlement  of  estate. 

257.  Liability  of  executors,  etc.,  for  the  acts  of  the  deceased. 

258.  Joint  contracts  and  promises. 

259.  Claim  of  child  or  near  relative  for  services,  etc, 

260.  Classification  of  demands  against  the  estate. 
2G1.  Limitation  of  demands,  etc. 

262.  Demands,  hove  exhibited. 

26.3.  List  of  demands  to  be  kept — Object  of  classification,  etc. 

264.  Demands,  how  established — By  judgment. 

265.  Judgments  rendered  in  lifetime  of  deceased. 

266.  Jurisdiction,  in  what  court,  as  to  demands. 

267.  Presenting  demand  to  probate  court. 

268.  Same — Waiver  of  notice  by  administrator,  etc. 

269.  Same — Affidavit  to  demand. 

270.  Same — By  agent. 

271.  When  the  claim  is  before  the  court,  etc. 

272.  Payment  of  demands  without  allowance,  when. 

273.  Set-off  and  other  defense  to  demand. 

274.  Trial  by  court  or  jury. 

275.  Same — When  claim  is  founded  on  note,  etc 

276.  When  demand  or  set-off  is  not  due. 

277.  Demand  of  executor  or  administrator. 

278.  Judgment,  how  entered,  form  thereof. 

279.  Same — Costs,  how  adjudged. 

280.  Same — Different  judgments,  their  effect. 

281.  Abstract  of  demands  allowed  to  be  kept  by  clerk  or  judge. 

282.  Effect  of  classification  of  demand. 

283.  Allowance  of  demand  when  executor  is  temporarily  absent. 

284.  Judgment   of   allowance,   etc.,   may   be   set   aside,   how   and 

when. 

§  256.  The  Speedy  Settlement  of  Estates  is  an  object 
greatly  to  be  desired  by  all  parties  interested  as  creditors, 
heirs,  devisees,  legatees  and  distributees,  for  very  obvious 
reasons.  It  not  only  enables  them  to  obtain  the  portion 
of  the  estate  to  which  they  are  entitled  as  speedily  as  is  con- 
sistent with  a  proper  administration,  but  it  saves  to  the 
estate  the  costs,  expenses,  and  perhaps  many  other  per- 
nicious consequences  incident  to  an  unreasonable  delay 
in  closing  up  the  administration.  It  is  material  also 
to  the  executor  or  administrator  to  be  advised  as  soon  as 
possible  of  the  condition  of  the  estate — whether  it  is  solv- 
ent or  insolvent.  This  he  cannot  know,  in  many  instances, 
until  all  the  claims  of  creditors  have  been  exhibited  and 


§  257  ALLOWANCE   OF   DEMANDS  201 

allowed.  It  is  also  important  to  those  interested  in  the  real 
estate,  as  it  is  liable  for  the  payment  of  the  debts  in  case 
the  personal  estate  is  insufficient;  and  the  heirs  or  dev- 
isees cannot  take  possession  and  improve  it  with  safety 
while  the  sufficiency  of  personal  assets  remains  in  doubt.  It 
was  in  this  spirit  and  out  of  these  considerations  that  pres- 
sure was  brought  to  bear  upon  the  Missouri  Legislature  in 
1911  which  led  to  the  amendments  permitting  administra- 
tion to  be  closed  within  one  year,  instead  of  within  two, 
as  was  formerly  the  case. 

§  257.  Liability  of  Executor,  etc.,  for  the  Acts  of  the 
Deceased. — The  rule  has  been,  from  very  early  times,  that 
the  right  of  action,  founded  upon  any  obligation,  contract, 
debt,  covenant,  or  other  duty,  on  which  the  decedent  might 
have  been  sued  in  his  lifetime,  survives  his  death,  and  may 
be  enforced  against  his  executor  or  administrator.  Ex- 
ecutors and  administrators  so  completely  represent  their 
decedent  that  they  are  liable  on  his  obligations,  such  as 
bonds,  covenants,  contracts,  etc.,  whether  they  are  named 
in  the  instrument  in  terms  or  not;  for,  if  a  man  binds  him- 
self, his  executors  and  administrators,  though  not  named, 
are  bound  by  implication.  But  this  implied  liability  of  ex- 
ecutors and  administrators  does  not  extend  to  contracts 
which  are  personal  to  the  deceased,  as  an  undertaking  to 
compose  a  work,  or  instruct  an  apprentice,  or  to  discharge 
the  duties  of  a  pastor  or  teacher.  And  it  was  a  principle 
of  the  common  law  that  if  an  injury  was  done,  either  to 
the  person  or  property  of  another,  for  which  damages  only 
could  be  recovered  in  satisfaction,  the  action  abated  with 
the  death  of  the  person  by  whom  the  wrong  was  commit- 
ted, and  could  not  be  enforced  against  his  personal  rep- 
resentative. But  this  principle  has  been  materially  modified 
by  the  Missouri  statute,  which  enacts  that,  for  all  wrongs 
done  to  the  property,  rights  or  interest  of  another,  for  which 
an  action  might  be  maintained  against  the  wrong  doer,  such 
action  may  be  brought  by  the  person  injured,  or  after  his 
death  by  his  executor  or  administrator,  against  such  wrong 
doer,  and  after  his  death  against  his  executor  or  adminis- 
trator, in  the  same  manner  and  with  like  effect,  in  all  re- 
spects, as  actions  founded  upon  contract.  But  this  provi- 
sion does  not  extend  to  actions  for  slander,  libel,  assault 
and  battery  or  false  imprisonment,  nor  to  actions  on  the 


262  ALLOWANCE    OF   DEMANDS  §  257 

case  for  injuries  to  the  person.^  This  section  has,  how- 
ever, been  amended  as  heretofore  stated  by  more  recent 
enactments  of  the  Legislature,  permitting  in  certain  cases 
the  personal  representative  to  maintain  action  on  the  case 
for  injuries  to  the  person  of  the  testator  or  intestate.-  Ac- 
tions for  personal  injuries  do  not  abate  under  our  present 
law  upon  the  death  of  either  plaintiff  or  defendant,  but  are 
revived  in  the  name  of  the  administrator  or  executor.  This 
subject  was  pertinent  to  the  questions  treated  in  the  pre- 
vious chapter  and  was  fully  discussed  there. ^ 

Actions  for  libel,  slander,  malicious  prosecution,  etc., 
abate  with  the  death  of  either  party.* 

§  258.  Joint  Contracts  and  Promises. — The  statute  en- 
acts that  contracts  which  by  the  common  law  are  joint  only, 
shall  be  construed  to  be  joint  and  several.  In  case  of  the 
death  of  one  or  more  of  the  joint  obligors  or  promisors, 
the  joint  debt  or  contract  shall  and  may  survive  against 
the  heirs,  executors  and  administrators  of  the  deceased  ob- 
ligor or  promisor,  as  well  as  against  the  survivors.  When 
all  the  obligors  or  promisors  shall  die,  the  debt  or  con- 
tract shall  survive  against  the  heirs,  executors  and  admin- 
istrators of  the  deceased  joint  obligors  and  promisors.  And 
in  all  cases  of  joint  obligations  and  joint  assumptions  of 
co-partners  or  others,  suits  may  be  brought  and  prosecuted 
against  any  one  or  more  of  those  who  are  so  liable.'^  In 
determining  whether  a  contract  is  joint  or  several  the  court 
will  consider  the  interest  of  the  parties  therein  as  well  as 
the  terms  of  the  contract.^  Contracts  may  be  partly  joint 
and  partly  several.  And  one  joint  contractor  may  be  held 
for  the  acts  of  the  other.'' 

§  259.     Claim  of  Child  or  Near  Relative  for  Services,  etc. 

— There  is  a  class  of  claims  which  arc  frequently  presented 
against  estates  to  which  special  reference  ought  perhaps  to 
be  made.  It  is  this :  the  claims  of  children  and  near  rela- 
tives against  the  estates  of  deceased  parents  and  relatives 

1  Rev.  St.  1009,  §§  105,  lOG;    Stanley  v.  Bircher's  Ex'r,  78  Mo.  215. 

2  Rev.  St.  1909,  §§  5425,  5420,  5427 ;    ante,  §  245. 

3  Ante,  §  243. 

4  Rev.  St,  1909,  §  lOG;  Melvin  ex  rel.  McVey  v.  Evans,  48  Mo.  App. 
421 ;    Beck  v.  Dowell,  40  Mo.  App.  71. 

5  Rev.  St.  1909,  §  2769. 

6  Slaughter  v.  Davenport,  151  Mo.  26,  51  S.  W.  471. 

7  Davis  &  Rankin  v.  Hendrix,  59  Mo.  App.  444. 


§  259  ALLOWANCE    OF    DEMANDS  2G3 

for  services  rendered  after  they  have  attained  full  age.  Dur- 
ing minority  the  parent  is  ordinarily  entitled  to  the  services 
of  the  child,  and  if  the  child  continues  to  live  with  the  par- 
ent after  he  is  of  age,  without  stii)ulating  for  wages,  anfl 
draws  his  support  from  the  family,  he  is  not  presumed  to 
work  for  pay,  and  a  promise  to  pay  will  not  be  implied 
from  the  mere  fact  of  the  services  being  rendered  or  re- 
quested, and  he  cannot  maintain  a  suit  for  wages. ^  But  if 
a  parent  employ  his  child,  who  is  of  age,  to  work  for  him, 
and  promise  to  pay  for  the  labor,  the  law  will  enforce  the 
agreement.  And  whether  there  is  any  agreement  or  prom- 
ise to  pay  is  a  question  of  fact  for  the  court  or  jury,  to  be 
determined  from  all  the  circumstances  in  the  case.  Each 
case  will,  to  some  extent,  necessarily  depend  on  its  own  spe- 
cial circumstances.**  While  the  mere  fact  that  a  parent  is 
taken  care  of  by  a  child  will  not  give  rise  to  an  implied  con- 
tract on  the  part  of  the  parent  to  pay  for  the  services  ren- 
dered, yet  it  is  not  necessary  in  order  to  recover  for  such 
services  to  show  a  contract,  all  the  terms  of  which  were 
expressed,  but  an  agreement  to  pay  may  be  inferred  from  the 
collateral  circumstances.^''  The  legal  presumption  of  a 
promise  to  pay  for  services  rendered  upon  request  where 
there  is  no  agreement  for  compensation  is  reversed  when 
the  services  are  rendered  to  a  parent  by  a  child  and  they 
are  assumed  to  be  gratuitous,  but  as  heretofore  stated  this 
presumption  may  be  overcome  by  evidence  of  an  express 
promise  to  pay  or  by  a  showing  of  circumstances  which 
indicate  clearly  an  intention  to  charge  by  one  and  to  pay 
by  the  other.^^  It  has  been  held  that  a  statement  made  by 
deceased  that  he  intended  that  his  son  who  was  caring  for 
him  should  have  all  his  property  is  some  evidence  of  an 
understanding  or  agreement  between  them  that  the  son 
should  be   paid   for  services   rendered   in  caring  for   dece- 

8  State  ex  rel.  Yooman  v.  Hoshaw,  S6  Mo.  193, 

9  Jlorris  v.  Bunios.  ;;5  Mo.  412 ;  Smith  v.  Myers,  19  Mo.  433 ; 
Piuter  V.  Roberts,  51  Mo.  App.  222;  Louder  v.  Hart,  52  :Mo.  App. 
377;  Erhart  v.  Dietrich.  US  Mo.  41S,  24  S.  W.  ISS ;  Callahan  v. 
Riggins,  43  Mo.  App.  130. 

1"  Rose  V.  Mays,  13!)  Mo.  App.  240,  122  S.  W.  7(iO;  Stone  v.  Troll, 
134  Mo.  App.  308,  114  S.  ^\.  82 ;  Baxter  v.  Woll,  152  Mo.  App.  557, 
133  S.  W.  1188;  McMorrow  v.  Dowell,  110  Mo.  App.  289,  90  S.  W.  728. 

11  Rose  V.  Mays,  139  Mo.  App.  240,  122  S.  W.  709;  Taylor  v.  Hud- 
son, 145  Mo.  App.  377,  129  S.  W.  201;  McMurrow  v.  Dowell,  110 
Mo.  App.  289,  90  S.  W.  72S. 


264  ALLOWANCE   OF   DEMANDS  §  269 

dent.^*  On  the  other  hand,  it  has  been  held  in  another  case 
that  a  promise  made  by  deceased  to  the  mother  of  the 
claimant  that,  if  the  claimant  would  come  and  live  with 
decedent,  decedent  would  "do  a  good  part"  for  claimant, 
is  too  vague  and  indefinite  to  constitute  an  agreement  on 
which  plaintiff  can  recover  against  the  estate. ^^  It  has  been 
held  that  the  promise  of  compensation  for  services,  although 
the  persons  are  of  a  near  kinship,  need  not  be  evidenced  by 
a  writing  or  have  been  heard  by  witnesses,  but  it  may  be 
inferred  from  other  facts  that  there  was  an  agreement/* 

The  better  rule  is,  that  where  a  parent  dwells  with  a 
child,  or  a  child  with  the  parent,  or  a  sister  with  a  brother, 
or  the  like,  as  a  member  of  the  family,  the  presumption 
created  by  such  near  kinship  is  that  no  payment  was  ex- 
pected or  intended,  and  such  presumption  can  only  be  over- 
come by  clear  proof  of  an  express  contract  to  pay  for  serv- 
ices on  the  one  hand,  or  for  maintenance  on  the  other.^^ 
So  if  a  parent  employ  his  children  under  the  expectation 
and  mutual  understanding  that  they  shall  be  paid  for  their 
services  by  way  of  legacy,  but  without  any  special  agree- 
ment to  that  effect,  there  is  sufficient  evidence  to  raise  an  im- 
plied promise  at  least,  and  if  default  be  made  the  right  to  re- 
cover exists,  whether  the  remuneration  in  the  mode  con- 
templated is  prevented  by  accident  or  design.^®  A  daugh- 
ter, suing  her  father's  executor  on  the  theory  of  an  express 
promise  to  pay  for  services  rendered  during  the  father's  life- 
time, cannot  recover  on  proof  of  a  promise  of  her  fa- 
ther to  provide  for  her  compensation  by  his  last  will.^^ 
And  where  labor  is  performed  for  the  decedent  under  an 
express  contract  or  promise  that  he  will  compensate  the 
same  by  leaving  in  his  last  will  a  bequest  or  legacy  to  the 
laborer,  but  fails  to  do  so,  an  action  will  lie  against  his  ex- 
ecutor to  recover  the  amount  or  value  of  the  promised  be- 
quest.^^     In  a  case  where  decedent  has  promised  to  com- 

12  Stone  V.  Troll,  134  Mo.  App.  308,  114  S.  W.  82. 

18  McMorrow  v.  Dowell,  116  Mo.  App.  289,  90  S.  W.  728. 

14  Fry  V.  Fry,  119  Mo.  App.  476,  94  S.  W.  990. 

15  Penter  v.  Roberts,  51  Mo.  App.  222 ;  Louder  v.  Hart,  52  Mo.  App. 
377;  Erhart  v.  Dietrich,  118  Mo.  418,  24  S.  W.  188;  Snyder  v.  Free, 
114  Mo.  360,  21  S.  W.  847;  Shannon  v.  Carter,  09  Mo.  App.  134,  72 
S.  W.  49.5 ;  Cole  v.  Fitzgerald,  132  Mo.  App.  17,  111  S.  W.  628. 

16  Hiatt  V.  Williams,  72  Mo.  214,  37  Am.  Rep.  438. 

17  Bircher  v.  Boemler,  204  Mo.  5.54,  103  S.  W.  40. 

isFuchs  V.  Fuchs,  48  Mo.  App.  18;  Bell  v.  Hewitt's  Ex'rs,  24  Ind. 
280. 


§  260  ALLOWANCE   OF   DEMANDS  265 

pensate  another  for  services  rendered  in  caring  for  decedent 
by  leaving  to  her  all  her  property  and  has  failed  to  do  so, 
the  one  rendering  the  services  has  not  only  the  remedy  by 
way  of  specific  performance,  but  is  also  entitled  to  recover 
the  value  of  the  services  rendered.^" 

§  260.  Classification  of  Demands. — The  demands  against 
an  estate  of  a  deceased  person  are  divided  in  ^Missouri  into 
the  following  classes:  -" 

1.  Funeral  expenses.  Originally  under  the  comuKjn  law 
the  first  duty  that  devolved  upon  the  executor  or  expected 
administrator  was  to  bury  the  deceased  in  a  manner  suit- 
able to  the  estate  he  left  behind  him.  If  the  executor  was 
not  at  hand  or  was  not  known,  any  friend  might  make  the 
arrangements  for  burial  and  the  necessary  expense  would 
be  paid  out  of  the  assets  of  the  estate.  In  this  country, 
the  funeral  is  generally  conducted  by  or  under  the  direction 
of  the  family  or  near  relatives  of  the  deceased.  Indeed, 
in  the  absence  of  any  testamentary  disposition,  the  body 
and  its  burial  belongs  exclusively  to  the  next  of  kin,  and 
they  have  the  right  to  select  the  place  of  sepulture  and  to 
change  it  at  pleasure.  It  is  primarily  the  estate  of  the  de- 
cedent and  not  the  widow  that  is  liable  for  his  funeral  expens- 
es, and  the  mere  fact  that  the  widow  makes  the  funeral  ar- 
rangements will  not,  without  an  express  promise  on  her 
part  to  pay  therefor,  render  her  personally  liable.-^  She  is 
justified  on  her  own  motion  in  ordering  the  interment  for 
her  deceased  husband  on  a  scale  suitable  to  the  financial 
condition  of  the  decedent,  and  for  the  expense  so  incurred 
the  estate  will  be  liable.  Where  the  funeral  expense  is  in- 
curred by  a  mere  interloper,  such  expense  cannot  consti- 
tute a  charge  against  the  estate.-^  Where  the  expense  is 
incurred  by  one  who  knew  decedent,  in  the  absence  of  rela- 
tives to  take  charge  of  the  funeral,  the  amount  so  paid,  if 
reasonable,  will  constitute  a  valid  claim  against  decedent's 
estate.  So  it  has  been  held  that,  where  an  auditor  of  the 
telephone  company  directed  an  undertaker  to  care  for  the 
body  of  an  employe  of  the  company  who  had  been  killed 
by  a  fall  from  one  of  its  poles  and  the  company  paid  the 

i»  Taylor  v.  Hudson.  145  Mo.  App.  377,  129  S.  W.  2G1. 
2  0  Rev.  St.  1909,  §  190. 
2iHayder  v.  Maher,  67  Mo.   App.  434. 

2  2  Wagoner  Undertaking  Co.  v.  Joues,  134  Mo.  App.  101.  114  S. 
W.  1049. 


2G6  ALLOWANCE    OF   DEMANDS  §  260 

expense  thereof,  it  could  establish  a  demand  for  the  amount 
so  paid,  if  reasonable,  against  the  estate,  independent  of 
any  question  of  subrogation  of  the  rights  of  the  under- 
taker or  an  assignment  of  his  claim."  It  has  been  held  in 
Missouri  that,  where  the  decedent  came  to  his  death  b}'- 
violence  or  casualty,  the  estate  would  be  liable  for  the  ex- 
penses incurred  by  the  coroner  in  the  burial  of  deceased, 
including  compensation  for  bringing  the  body  floating  upon 
the  water  to  shore,  but  that  the  estate  was  not  liable  for 
the  costs  and  expense  of  a  coroner's  inquest.^* 

The  funeral  expenses  will  necessarily  include  grave- 
clothes,  coffin,  preparation  of  the  grave,  use  of  hearse,  rea- 
sonable carriage  hire  for  the  conveyance  of  the  family  and 
other  expenses  incident  to  the  burial.  The  necessary  cost 
of  communicating  the  intelligence  of  the  death  of  the  de- 
ceased to  his  family  has  been  regarded  as  funeral  ex- 
penses."^ The  amount  to  be  expended  upon  the  funeral  of 
a  decedent  should  be  regulated  by  his  former  condition  in 
life  and  the  amount  of  the  estate.  It  may,  of  course,  be  con- 
trolled by  the  provisions  of  the  will,  if  the  estate  is  solvent. 
As  against  legatees  or  next  of  kin  the  law  is  more  liberal  in 
regard  to  the  manner  in  which  the  funeral  may  be  conducted 
than  as  against  creditors.  Thus  mourning  apparel  for  the 
widow  and  children,  and  a  monument  or  tombstone,  have 
been  allowed  as  funeral  expenses  as  against  the  heirs  and 
legatees;  but  if  the  estate  is  insolvent,  as  against  creditors, 
no  expense  beyond  what  is  necessary  and  usual  in  such 
cases  should  be  incurred.  A  claim  for  funeral  expenses  is 
a  demand  of  the  first  class,  and  where  exhibited  against 
the  estate  within  six  months,  but  not  presented  to  the 
court  for  allowance  within  a  year,  after  grant  of  letters, 
should  still  remain  in  the  first  class  and  not  be  relegated  to 
the  sixth  class.^® 

2.  Expenses  of  last  sickness,  wages  of  servants  and  de- 
mands for  medicine  during  the  last  sickness  of  the  de- 
ceased. This  classification  is  practically  self-explanatory 
and  demands  falling  within  it  follow  funeral  expenses  in 
order  of  priority  as  to  payment. 

23  Cape  Girardeau  Bell  Tel.  Co.  v.  Hamil,  IGO  Mo.  App.  521,  140 
S.  W.  0.j1. 

24  Houts  V.  McChiney,  102  Mo.  1.^.  14  S.  W.  766. 

25  .Tennison  v.  Hapgood,  10  Pick.  (Mass.)  77. 
'2  6Walley  v.  Gentry,  68  Mo.  App.  298. 


§  260  ALLOWANCE    OF   DEMANDS  207 

3.  All  debts,  includiiij:,'-  taxes  due  the  state  or  any  county 
or  incor])orated  cil}'  or  town  ;  and  it  shall  be  the  duty  of 
the  executor  or  administrator  to  i)ay  all  such  taxes  without 
any  demand  therefor  being  presented  to  the  court  for  al- 
lowance: Provided,  that  no  executor  or  administrator  shall 
pay  any  taxes  on  the  real  estate  of  the  deceased  that  are 
not  a  charge  against  the  same  at  the  death  of  the  deceased, 
excei)t  where  he  is  in  possession  of  the  realty  under  an  or- 
der of  the  court. 

It  has  been  held  that  the  dominant  idea  of  this  section 
of  the  statutes  is  the  classification  of  demands  against  es- 
tates; and  not  the  definition  of  taxes  or  debts,  and  that 
this  clause  is  merely  that  all  debts  due  the  state  or  any 
county  or  incorporated  city  or  town,  together  with  taxes 
due  to  one  or  the  other,  should  be  put  in  the  third  class 
of  demands  and  paid  accordingly.  For  the  purpose  of  al- 
lowance and  classification,  a  tax  may  be  treated  as  a  debt, 
although  a  tax  is  not,  in  its  essential  characteristics,  a  debt, 
as  it  operates  in  invitum  and  is  not  founded  on  contract  or 
agreement.-'  Another  section  of  the  statutes,  214,  Re\'.  St. 
1909,  refers  to  this  subject,  but  is  so  phrased  that  it  does 
not  afTect  the  classification  here  established.  While  taxes 
on  personal  property  may  be  allowed  against  the  estate,  it 
is  the  duty  of  the  administrator  to  pay  them  without  al- 
lowance and  take  credit  for  such  payment  in  settlements.'^ 
A  surviving  tenant  in  common  may  pay  taxes  on  real  estate 
belonging  to  deceased,  which  were  a  charge  against  the 
same  at  the  death  of  the  deceased,  and  cause  the  part  thereof 
chargeable  to  deceased  to  be  allowed  against  his  estate.^* 

4.  Judgments  rendered  against  the  deceased  in  his 
lifetime,  and  judgments  rendered  upon  attachments  levied 
upon  property  of  the  deceased  during  his  lifetime ;  but  if 
such  judgments  shall  be  liens  upon  the  real  estate  of  the 
deceased,  and  the  estate  shall  be  insolvent,  such  judgments 
as  are  liens  upon  the  real  estate  shall  be  paid  as  provided 
in  sections  156,  157,  158,  159,  160,  161,  162,  163  and  164. 
without  reference  to  classification,  except  the  classes  of  de- 
mands mentioned  in  the  first  and  second  subdivisions  of 
this    section    shall    have    precedence    of    such    judgments. 

-'  State  ex  rel.  Karreiibrock  v.  Mississippi  Valley  Trust  Co.,  209 
Mo.  472,  108  S.  W.  97;  r.atos  v.  Hamilton,  144  Mo.  1,  45  .s.  ^Y.  041, 
CO  Am.  St.  Rep.  407. 

2s  State  ex  rol.  Ziegenlu-in  v.  Tittmann.  103  Mo.  ."(.I,  15  S.  W.  936. 

2  9  Bates  V.  Ilamiltou,  144  Mo.  1,  45  S.  W.  G41,  OG  Am.  St.  Rep.  407. 


2G8  ALLOWANCE    OF   DEMANDS  §  260 

Where  an  execution  or  attachment  is  a  lien  on  personal  es- 
tate, the  proceeds  of  the  property  bound  must  be  applied 
to  the  satisfaction  of  the  demand  constituting  such  lien 
as  mentioned  in  Rev.  St.  1909,  §§  131,  132;  but  in  that  case 
the  claims  of  the  widow  and  the  demands  mentioned  in 
the  first  and  second  subdivisions  of  this  section  have  pre- 
cedence and  must  be  first  satisfied,  if  the  estate  is  insolvent. 
Judgments  must  be  presented  and  classified,  on  notice, 
as  other  demands. ^°  Judgments  of  this  state  only  can  be 
placed  in  this  class.  Judgments  of  other  states  (upon 
which  no  new  judgment  has  been  rendered  in  this  state) 
have  no  preference  over  simple  contract  debts. ^^  Judg- 
ments which  are  liens  on  real  estate  do  not  fall  within  this 
class,  nor  does  a  judgment  which  requires  the  action  of 
the  court  to  ascertain  the  amount  due  thereon,  and  judg- 
ments not  presented  within  six  months  belong  to  the  sixth 
class.^^ 

5.  All  demands,  without  regard  to  quality,  which  shall 
be  legally  exhibited  against  the  estate  within  six  months 
after  the  granting  of  the  first  letters  on  the  estate. 

Where  a  suit  is  instituted  against  the  administrator  dur- 
ing the  first  six  months  of  the  administration  and  legal 
service  of  process  is  had  upon  him,  this  is  deemed  a  due 
exhibit  of  the  claim  upon  such  suit  is  founded. ^^  So,  too, 
a  revival  of  a  suit  already  pending  is  considered  a  proper 
exhibit  of  the  claim. ^'^ 

6.  All  demands  thus  exhibited  after  the  end  of  six 
months  and  within  one  year  after  letters  granted. 

Where  the  debt  accrues  more  than  six  months  after  the 
grant  of  letters,  it  must  be  placed  in  this  class.^^ 

§  261,  Limitation — All  Demands  not  thus  Exhibited 
within  one  year  are  forever  barred,  saving  to  infants,  per- 
sons of  unsound  mind,  or  imprisoned,  and  married  women  one 
year  after  the  removal  of  their  disabilities.^®  The  one  year  be- 
so  City  of  Carondelet  v.  Desnoyer's  -Adrn'r,  27  Mo.  3G;  Meyei-  v. 
Campbell,  12  Mo.  003;  Mundy  v.  Bryan,  14  Mo.  458;  Gibson  v. 
Vaughan,  61  Mo.  418. 

31  Gainey  v.  Sexton's  Adm'r,  29  Mo.  449;  Harness  v.  Green's  Adm'r^ 
20  Mo.  316 ;  Rutledge  v.  Simpson's  Adm'r,  141  Mo.  290,  42  S.  W.  820. 

3  2  Peters  v.  Holliday,  40  Mo.  544;  Bassett  v.  Elliott's  Adm'r,  7* 
Mo.  525 ;  Griswold  v.  Johnson,  22  Mo.  App.  460. 

3  3  Madison  County  Bank  v.  Suman's  Adm'r,  79  Mo.  527. 

84  Smiley  v.  Cockrell,  92  Mo.  10(5,  4  S.  W.  443. 

86  Williams  v.  Penn,  12  Mo.  App.  393.  36  Laws  1911,  p.  81. 


§  261  ALLOWANCE   OF   DEMANDS  269 

gins  to  run  from  the  date  of  the  letters  where  notice  of  letters 
is  given  within  ten  days,  and  where  notice  is  not  given  with- 
in that  time,  from  date  of  publication  of  notice."  When  a 
demand  is  barred  by  the  general  statute  of  limitations  within 
one  year  that  limitation  will  apply.^^  And  when  the  demand 
accrues  after  the  granting  of  letters,  the  statute  begins  to  run 
from  the  time  the  demand  accrues.^"  The  statute  will  not  run 
during  the  time  there  is  no  administration. •*''  The  administra- 
tor is  bound  to  plead  this  statute,  but  not  the  general  statute.*^ 
The  one  year  limitation  does  not  apply  when  the  demand  is 
set  up  as  a  counter  claim,  or  set-off  to  an  action  by  the  ad- 
ministrator,*- or  when  the  action  is  to  reach  a  trust  fund  in 
the  hands  of  the  administrator,*^  nor  does  it  apply  to  a  claim 
that  is  contingent  upon  an  occurrence  which  takes  place  after 
the  lapse  of  one  year.** 

Prior  to  the  amendment  of  1911,  the  statutory  provision  de- 
manded not  only  exhibition  of  the  demand  to  the  administra- 
tor or  executor,  but  also  presentation  to  the  court  iot  allow- 
ance within  a  period  of  two  years  subsequent  to  the  date  when 
letters  were  granted,  or  if  publication  was  not  commenced 
within  thirty  days  a^ter  the  date  of  letters  within  two  years 
from  the  date  of  publication.*^  These  amendments  of  1911, 
providing  for  shortening  the  period  of  administration  from 
two  years  to  one,  are  somewhat  ambiguous  in  their  phrase- 
ology and  will  probably  be  altered  by  further  amendment.  It 
is  provided  that  all  demands  shall  be  exhibited  within  one 
year  after  the  date  of  letters,  or  within  one  year  from  date  of 
last  insertion  of  publication  of  notice  where  publication  is  not 
commenced  within  ten  days  after  date  of  letters,  and  it  fur- 

37  Laws  1911,  p.  81;  ante,  §  222;  Wilson  v.  Gregory,  61  Mo.  421. 
■is  :\IcKinzie  v.  Hill,  .51  Mo.  303.  11  Am.  Rep.  450;  Ayers  v.  Dounell, 
57  Mo.  396 ;   La  Beaume  v.  Hempstead,  1  Mo.  773. 

3  9  Miller  v.  Woodward,  S  Mo.  169;  Finney  v.  State,  to  Use  of  Es- 
tiss,  9  Mo.  227;  Chambers'  Adra'r  v.  Smith's  Adm'r,  23  Mo.  174; 
Burton  v.  Rutherford,  49  Mo.  255 ;  Greenabaum  v.  Elliott.  60  Mo.  25 ; 
State  ex  rel.  Patterson  v.  Tittniann.  1,34  Mo.  162.  35  S.  W.  579. 

40  McDonald  v.  Walton.  2  Mo.  4S ;  Polk's  Adm'r  v.  Allen.  19  Mo. 
467;  McKinzie  v.  Hill,  51  Mo.  ,303,  11  Am.  Rep.  450. 

41  Wiggins  V.  Lovering's  Adm'r,  9  Mo.  262;  State  v.  Martin,  5 
Mo.  363. 

4  2  Stiles  V.  Smith,  55  Mo.  363;  Lay  v.  Mechanics'  Bank,  61  Mo.  72. 

43  P.ramell  v.  Adams.  146  Mo.  70.  47  S.  W.  93. 

44  Morgan  v.  Gibson,  42  Mo.  App.  234;  State  ex  rel.  Patterson 
V.  Tittman,  54  Mo.  App.  490;  Binz  v.  Hyatt,  200  Mo.  299,  9S  S.  W. 
637 ;  State  ex  rel.  Patterson  v.  Tittmanu,  134  Mo.  162,  35  S.  W.  579. 

4  5  Rev.  St.  1909.  §  195. 


270  ALLOWANCE    OF    DEMANDS  §  ^^1 

ther  provides:  "Nor  unless  he  shall  also  present  his  demand 
to  the  court  at  the  term  thereof  next  succeeding  the  term  at 
whicli  he  shall  have  exhibited  the  same,  whenever  the  same 
is  exhibited  during  the  term  at  which  final  settlement  could 
be  made  except  for  the  exhibition  of  such  demand."  *^  Strict- 
ly construed,  the  section  is  self-contradictory,  as  the  term  at 
which  final  settlement  can  be  first  made  is  the  first  term  after 
the  expiration  of  one  year  from  date  of  letters.  The  intention 
of  the  legislators  doubtless  was  to  provide  that  demands  ex- 
hibited during  the  term  prior  to  that  at  which  final  settlement 
could  be  made  might  be  presented  and  allowed  at  the  term 
when  final  settlement  is  had.*'  The  statute  should  require 
both  exhibition  to  the  administrator  or  executor  and  the  pres- 
entation to  the  court  for  allowance  within  the  period  of  one 
year  from  date  of  letters  if  the  demand  is  not  to  be  barred  by 
limitation.  Presentation  to  the  court  makes  the  demand  a  mat- 
ter of  record,  and  it  should  be  required  if  the  claim  is  not 
barred  within  the  statutory  period. 

The  special  limitation  of  one  year  upon  claims  not  ex- 
hibited within  that  time  does  not  apply  to  the  allowance  which 
the  law  gives  to  the  widow  as  her  absolute  property.  The 
period  of  limitation  upon  the  allowance  to  the  widow  is  five 
years,  and  the  limitation  does  not  begin  to  run  until  the  grant- 
ing of  letters.*^  This  is  true,  although  the  widow  herself  had 
the  prior  right  to  administer  on  the  estate  and  failed  to  make 
application  for  letters.  However,  if  the  widow  does  not  claim 
her  allowance  within  the  year  permitted  for  the  filing  of 
claims,  and  all  the  property  belonging  to  the  estate  is  dis- 
tributed. She  cannot  thereafter  demand  her  allowance  from 
the  distributees,  and  her  rights  are  barred.*® 

§  262.  Demands — How  Exhibited. — There  are  two 
modes  of  legally  exhibiting  demands  against  decedent's  es- 
tates ;  the  one  is  by  serving  upon  the  executor  or  administra- 
tor a  notice  in  writing,  stating  the  amount  and  nature  of  the 
claim,  with  a  copy  of  the  instrument  of  writing,  or  account 
upon  which  the  claim  is  founded  ;  and  the  claim  is  considered 
legally  exhibited  from  the  time  of  serving  the  notice,  or  a 
waiver  of  the  notice,  in  writing  by  the  executor  or  administra- 
tor ;  the  other  is  by  reviving  an  action  commenced,  or  com- 
mencing an  action  on  the  demand.     If  an  action  is  pending 

40  Laws  1911,  p.  82.  4  7  Laws  1911,  p.  82. 

4  8  In  re  Ulrici's  Estate,  145  Mo.  App.  40.'',.  122  S.  W.  7G1. 

49  Lamar  v.  IJelclier,  ir»4  Mo.  App.  571,  r.',(\  S.  W.  748. 


§  2G2  ALLOWANCE    OF    DEMANDS  271 

against  a  person  at  the  time  of  his  death,  which  by  law  sur- 
vives, the  claim  ui)on  which  the  action  is  founded  is  consid- 
ered a  demand  legalh'  exhibited  against  the  estate  from  the 
time  the  action  is  revived  against  the  executor  or  administra- 
tor, and  must  be  classed  accordingly.  And  an  action  com- 
menced against  an  executor  or  administrator,  after  the  death 
of  the  deceased,  is  considered  a  demand  legally  exhibited 
against  the  estate  from  the  time  of  serving  the  original  process 
on  the  executor  or  administrator.^"  And,  although  the  claim- 
ant in  such  case  may  take  a  voluntary  non-suit  and  file  his 
claim  in  llie  probate  court  for  allowance,  yet  the  service  of 
the  process  upon  the  administrator  in  the  action,  withiii  a 
year  from  the  date  of  his  letters,  is  an  exhibition  of  the  claim 
and  entitles  it  to  be  assigned  to  the  fifth  class. "'^  But  not  if 
the  court  had  no  jurisdiction  of  the  action. ^- 

The  notice  by  which  a  claim  may  be  exhibited  to  the  execu- 
tor or  administrator  for  classification  must  be  in  writing,  un- 
less it  is  waived  in  writing;  a  verbal  waiver  is  not  sufficient." 
It  may  be  as  follows : 

Notice  of  Claim 

To  .7.  D.,  adnnnistrator  of  the  estate  of  R.  R.,  deceased: 

Take  notice,  that  the  undersigued  has  a  deuiaud  aj^ainst  said  es- 
tate for  the  Sinn  of  dollars  and  cents,  with  the  in- 
terest thereon  amounting  to  dollars  and  cents,  found- 
ed on  (a  note,  instrument  of  wrltin.i;  or  account),  of  which  the  fol- 
lowing is  a  copy:  (Here  copy  the  demand.  If  the  claim  has  been  as- 
signed to  the  claimant,  add) ;  and  on  which  demand  is  an  assign- 
ment, of  which  the  following  is  a  copy:  (Here  copy  the  assign- 
ments.) 

Nov.  — ,  19—.  S.  T.  JOY. 

The  demand  must  be  reduced  to  writing,  or  be  evidenced 
by  a  writing  or  written  instrument,  having  some  tangible 
form  and  substance  from  which  the  liabilitv  of  the  estate  may 
appear,  although  no  formal  pleadings  are  required  in  the  pro- 
bate court.^* 

BO  Rev.  St.  1900,  §§  192.  19.'],  194;  In  re  Ilensley's  .\llowance,  121 
Mo.  App.  GO.").  07  S.  W.  04r, :  Corson  v.  Waller,  304  Mo.  App.  G21, 
78  S.  W.  050. 

51  Tevis  V.  Tevis,  2?,  Mo.  2r)G. 

B2  Wernse  v.  Mcl'ike,  7(;  Mo.  249. 

■'■■•i  Raniln-ick  v.  liamhrick.  1.57  Mo.  42n.  .58  S.  W.  S. 

64  Williams  v.  Gerber,  75  ^lo.  App.  18;  Walker  v.  Gay's  Estate, 
73  Mo.  App.  NO;  State  ex  rel.  Hayes  v.  Sealu.rn.  i;:9  Mo.  uN2,  39  S. 
W.  SOO ;  Clark  v.  Bettelheim,  144  Mo.  2.")S.  4(1  S.  W.  135. 


272  ALLOWANCE   OF   DEMANDS  §  262 

No  claimant  can  avail  himself  of  the  benefit  of  this  mode  of 
exhibiting  his  demand,  unless  he  presents  it  to  the  court,  in 
the  manner  provided  by  law,  for  allowance,  within  one  year 
after  the  granting  of  the  first  letters  on  the  estate,  or  the  pub- 
lication of  notice  of  the  grant  of  such  letters."^ 

§  263.  Every  Executor  and  Administrator  must  keep  a 
list  of  all  demands  exhibited  to  him  in  this  way,  class  them 
and  make  return  thereof  to  the  court  at  each  settlement.^* 
The  object  of  exhibiting  a  demand  against  an  estate  is  two- 
fold :  First,  to  inform  the  executor  or  adnjinistrator  and  oth- 
ers interested  of  the  existence  of  such  demand,  and  to  expedite 
the  administration  by  giving  a  preference  to  the  diligent;  and 
second,  to  exclude  from  participation  in  the  estate  all  creditors 
who  do  not  exhibit  their  claims  within  the  time  prescribed. 

A  claim  is  not  exhibited  against  an  estate  so  as  to  be  al- 
lowed and  classified  until  it  is  shown  to  the  administrator  with 
a  view  to  such  pv:rpose ;  and  there  must  be  something  said, 
done  or  written  to  indicate  that  it  is  the  intention  to  procure 
its  allowance  against  the  estate ;  exhibiting  it  to  him  for  some 
other  purpose  does  not  entitle  it  to  be  classed  or  assigned  to  a 
class. ^^  As  before  stated,  under  the  statutory  provisions 
which  barred  claims  not  presented  to  the  court  within  the 
period  of  two  years  after  the  date  of  letters,  a  creditor  had 
not  only  to  exhibit  his  demand  within  the  time  prescribed, 
but  also  it  was  necessary  for  him  to  have  it  allowed  by  the 
court. ^^  If  he  did  not  take  this  action  he  could  not,  after  the 
estate  was  finally  settled,  maintain  a  suit  to  subject  lands  de- 
scended to  the  heirs  to  the  payment  of  his  debt.^''  Since  the 
amendments  made  by  the  legislature  in  1911,  it  is  a  doubtful 
question  as  to  whether  or  not  the  creditor  is  compelled  to 
present  his  demand  to  the  court  for  allowance  within  the  stat- 
utory period  of  one  year  now  provided  for  the  exhibition  of 
demands  to  the  administrator  or  executor. 

5  5  Rev.  St.  1909,  §  195,  as  amended  by  Laws  of  1911,  p.  82; 
Farmers'  Savings  Bank  of  Marshall  v.  Burgin,  73  Mo.  App.  108; 
Price  V.  McCause,  30  Mo.  App.  G27. 

5  0  Rev.  St.  1909,  §  196;  Pfeiffer  v.  Suss,  73  Mo.  245,  255;  Wernse 
v.  McPike.  100  Mo.  476,  13  S.  W.  809. 

5  7  Pfeiffer  v.  Suss,  73  Mo.  245;  Farmers'  Savings  Bank  of  Mar- 
shall V.  Burgin,  73  Mo.  App.  108. 

5  8  Walley  v.  Gentry,  68  Mo.  App.  298. 

59  Collamore  v.  Wilder,  19  Kan.  67;  State  ex  rel.  Patterson  v. 
Tittman,  .'54  Mo.  App.  490;  Beekman  v.  Richardson,  150  Mo.  430, 
51  S.  W.  689. 


§  265  ALLOWANCE    OF    DEMANDS  273 

§  264.     Demands,  How  Established — By  Judgment. — It 

is  not  essential  to  the  allowance  of  a  claim  that  it  should  be 
exliibitcd  to  the  executor  or  administrator  in  the  manner  point- 
ed out  in  the  preceding  section,  nor  was  it  sufficient  under  our 
former  statute  that  it  had  been  thus  exhibited ;  it  was  neces- 
sary that  it  be  presented  to,  and  allowed  by,  the  probate  court, 
and  by  it  assigned  to  the  proper  class,  before  the  executor 
or  administrator  will  be  required  to  pay  it.°°  There  are  at 
least  two  modes  by  which  claims  may  be  established  against 
estates,  which  will  now  be  considered.  By  judgment. — The 
claimant  may  bring  an  action  in  a  court  of  record  having  juris- 
diction of  the  demand  and  recover  judgment  thereon,  against 
the  executor  or  administrator  in  the  ordinary  course  of  pro- 
ceeding, and  exhibit  a  copy  of  the  judgment  or  decree  to  the 
probate  court  for  classification."^  When  suit  is  brought  upon 
a  claim  in  the  circuit  court  it  is  not  necessary  to  serve  a  copy 
of  the  demand  on  the  administrator,  and  the  jud Lament  of  the 
court  establishes  the  claim.*' - 

§  265.     All  Judgments  Rendered  Against  the  Deceased 

in  his  lifetime,  must  be  also  thus  exhibited  and  assigned  to  the 
proper  class."-'  A  judgment  is  final  and  establishes  the  demand 
against  the  estate,  and  when  the  transcript  is  presented  it  is 
the  duty  of  the  court  to  allow  and  classify  it,  unless  the  ad- 
ministrator can  show  payment  or  other  defense  arising  since 
the  rendition  of  the  judgment.'""*  A  judgment  which  was  ren- 
dered in  the  lifetime  of  the  deceased  must  be  presented  to  the 
probate  court  for  allowance  and  classification,  and  it  was  for- 
merly held  that  the  same  notice  to  the  administrator  was  re- 
quired as  in  the  presentation  of  other  demands,"^  and  to  allow 
such  a  judgment  as  a  demand  against  the  estate  without  such 
notice  was  a  void  act  and  did  not  establish  it  as  a  legal  de- 
mand.''"    But  the  court  now  holds  that  no  notice  is  necessary 


6  0  Farmers'  Savings  Bank  of  Marshall  v.  Burgin,  73  Mo.  App.  108. 

61  Stephens  v.  Bemays,  119  Mo.  143,  24  S.  W.  46;  Rev.  St.  1009. 
§§  192,  193 ;  City  of  Carondelet  v.  Desnoyer's  Adm'r,  27  Mo.  36 ;  Gib- 
son V.  Vauffhan,  61  Mo.  418. 

6  2  Gewe  V.  Ilanszen,  So  Mo.  App.  136. 

63  Rev.  St.  1909.  §  197;  City  of  Carondelet  v.  Desnoyer's  Adm'r,  27 
Mo.  .30;  Gibson  v.  Vaughan.  (il  Mo.  41S. 

64  Rev.  St.  1909,  §§  214,  215. 

«5  Mundy  v.  Bryan.  14  Mo.  458;    Ewlng  v.  Taylor,  70  Mo.  394. 
«6  Wernse  v.  McPike,  70  Mo.  249. 
Kel.Mo.P.G.— 18 


274  ALLOWANCE    OF   DEMANDS  §  265 

and  the  judgment  must  be  classified  upon  presentation  to  the 
probate  court.*^" 

A  judgment  is  presumed  to  be  paid  in  ten  years,  and  would 
be  barred  in  that  time  by  such  presumption ;  but  until  that 
period  has  elapsed,  it  may  be  presented  for  allowance."^ 

§  266.  Jurisdiction — In  what  Court. — The  probate  court 
may  hear  and  determine  all  suits  and  other  proceedings  in- 
stituted against  executors  and  administrators,  upon  any  de- 
mand against  the  estate  of  their  testator  or  intestate,  and  of 
all  set-offs  and  other  defenses  allowed  by  law,  set  up  thereto 
by  the  administrator  or  executor ;  and  a  concise  entry  of  the 
order  of  allowance  or  finding  shall  be  made  on  the  record  of 
the  court,  which  shall  have  the  force  and  effect  of  a  judg- 
ment.^* 

It  has  been  held  that  the  probate  court  may  properly  allow 
against  the  estate  of  a  deceased  wife  a  demand  due  to  her 
husband  for  money  borrowed  from  her  during  her  life  time; 
that  this  was  a  money  demand  and  the  probate  court  has  ju- 
risdiction to  allow  it,  although  it  was  equitable  in  its  nature.'"* 
If  the  finding  be  against  the  plaintiff,  such  court  has  power 
to  issue  execution  against  him  in  the  manner  provided  by 
law.'^^  If  any  person  commence  a  suit  of  any  kind  in  the  cir- 
cuit court,  except  a  suit  in  equity  against  the  estate  (executor 
or  administrator)  within  one  year  from  the  date  of  adminis- 
tration, he  may  recover  judgment,  but  shall  pay  all  costs. '^^  In 
view  of  these  provisions  of  the  statute,  a  party  having  a  de- 
mand against  an  estate  can  accomplish  by  suit  or  proceeding 
in  the  probate  court  all  that  can  be  effected  in  any  other  court, 
and  at  much  less  cost  and  more  speedily,  as  the  court  sits 
oftener  and  is  not  likely  to  be  overwhelmed  with  litigation, 
which  necessarily  causes  delay  in  the  trial  of  causes. 

67  Gibson  v.  Vanghan,  Gl  Mo.  41S ;  Wernse  v.  McPike,  100  Mo.  476, 
1.3  S.  W.  809:  City  of  Carondelet  v.  Desnoyer's  Adm'r,  27  Mo.  36; 
McFaul  V.  Haley.  166  Mo.  56,  6.5  S.  W.  995. 

68  Rev.  St.  1909,  §  1912;    Ewing  v.  Taylor,  70  Mo.  394. 

6  0  Rev.  St.  1909,  §  198;  S.  Albert  Grocer  Co.  v.  Estate  of  Tainter, 
66  ISIo.  App.  481. 

7  0  Grimes  v.  Reynolds,  94  Mo.  App.  576,  68  S.  W.  .588;  Grimes  v. 
Reynolds,  184  Mo.  679.  8.3  S.  W.  1132. 

7  1  Rev.  St.  1909,  §  199;  In  re  Jarboe's  Estate,  227  Mo.  59,  127 
S.  W.  26. 

72  Rev.  St.  1909.  §  217;  Keed  v.  Crissey,  63  Mo.  App.  184;  Kuowles 
v.  Rullene  &  Co.,  71  Mo.  App.  341. 


§  267  ALLOWANCE   OF   DEMANDS  275 

The  proceeding  to  cstahlish  a  deniaiul  ai(ainst  an  estate  is 
said  to  be  sui  generis,  and  not  an  action  in  the  ordinary  sense, 
yet  the  decision  of  the  court  has  the  effect  of  a  judgment  and 
is  a  bar  to  another  action.'^ ^ 

Where  an  administrator  presented  a  chiim  to  the  probate 
court  without  the  affidavit  of  the  claimant  attached  thereto, 
and  it  was  allowed  by  order  of  court  and  its  payment  directed 
out  of  the  assets  of  the  estate,  the  judgment  of  the  court  was 
void  for  want  of  jurisdiction.'* 

§  267.  By  Presenting  Demand  to  Probate  Court  for  Al- 
lowance.— Any  person  wishing  to  establish  a  demand 
against  an  estate  must  deliver  to  the  executor  or  administrator 
a  written  notice,  containing  a  copy  of  the  instrument  or  writ- 
ing or  account  on  which  it  is  founded,  and  stating  that  he  will 
present  the  same  for  allowance  at  the  next  regular  or  ad- 
journed term  of  the  court."  It  is  not  sufficient,  in  order  to 
give  the  court  jurisdiction  to  determine  the  validity  of  a  de- 
mand against  the  estate,  to  show  that  the  administrator  liad 
actual  knowledge  that  the  demand  would  be  presented.  Juris- 
diction must  be  predicated  upon  a  legal  written  notice  proper- 
ly formulated  and  properly  served  upon  the  administrator.''® 

Such  notice  may  be  as  follows : 

Notice  of  tJie  Presentinent  of  a  Donaiid  for  AUozvance 

To  J.  D.,  administrator  of  the  estate  of  R.  R.,  deceased. 

Take  notice  that  at  the  next  regular  (or  adjourned,  as  the  case 

may  he,)  term  of  the  probate  court  of county,  to  be  held  at 

the in  said  county,  on  the Monday  of  ,  19 — ,  on 

the day  of  said  term,  or  as  soon  thereafter  as  I  can  be  heard, 

T  shall  present  to  said  court,  for  allowance  against  said  estate,  a 
demand  founded  on  (a  note,  account  or  other  writing.)  of  which  the 
following  is  a  copy:  (Here  copy  the  demand).  If  the  demand  has 
been  assigned  to  the  claimant,  set  out  a  copy  of  the  assignment  also, 
thus:  And  on  which  is  an  assignment,  of  which  the  following  is  a 
copy:    (Here  copy  tlie  assignment). 

This day  of  ,  19—.  ABSALOM  JOY. 

7  3  State  ex  rel.  Ziegenhein  v.  Tittmann.  lO.'i  Mo.  ,'').").'].  15  S.  W.  O.'IO. 

T4  Fitzpatrick  v.  Stevens.  114  Mo.  App.  -197.  89  S.  W.  S97;  Jenkins 
V.  Morrow,  131  Mo.  App.  2SS.  109  S.  W.  10.11. 

-5  Rev.  St.  190<.\  S  L'O:*,:  Wernse  v.  McPike.  100  Mo.  470.  1.",  S.  W. 
809:  Stephens  v.  Bernays.  119  Mo.  14.'1,  24  S.  W.  4G;  Farmers'  Sav- 
ings Bank  of  Marshall  v.  Burgin,  7.1  Mo.  App.  108;  Williams  v.  Oer- 
ber.  75  Mo.  App.  18;  McFaul  v.  Haley,  100  Mo.  50.  05  S.  W.  995; 
Walteniar  v.  Schnick"s  Estate.  102  Mo.  App.  l.*;.'>.  70  S.  W.  1053. 

7c  Keys  v.  Key's  Estate,  217  Mo.  48,  110  S.  W.  .537. 


276  ALLOWANCE    OF    DEMANDS  §  267 

The  return  of  service  may  be  as  follows: 
Served  this  notice  by  delivering  a  copy  of  the  same  to  J.  D.,  ad- 
ministrator of  R.  R.,  deceased,  on  the day  of ,  19 — . 

D.  C.  S., 
Sheriff  of County,  Missouri. 

The  notice  must  be  served  on  the  executor  or  administrator 
by  delivering-  to  him  a  copy  thereof  or  by  leaving  a  copy  of 
the  same  at  his  usual  place  of  abode,  with  some  member  of  his 
family  over  the  age  of -fifteen  years,  ten  days  before  the  begin- 
ning of  such  regular  or  adjourned  term  of  court,  and  may  be 
served  by  any  sheriff  or  constable,  or  by  any  competent  wit- 
ness, who  must  make  affidavit  to  the  serviced  ^ 

The  account  or  demand,  a  copy  of  which  is  served  with  the 
notice  and  is  filed  in  court,  must  be  in  writing  and  state  the 
amount  and  nature  of  the  claim,  and  if  based  upon  an  instru- 
ment or  other  written  evidence  of  indebtedness  a  copy  should 
be  attached.  These  requisites  are  jurisdictional,  and  they  must 
be  substantially  complied  with  in  order  to  validate  the  judg- 
ment of  the  court.'' ^ 

The  account  filed  and  to  be  copied  into  or  attached  to  the 
notice  may  be  in  the  following  form,  as  far  as  applicable: 

St.  Joseph,  Mo.,  June  1st,  19—. 

The  estate  of  R.  R.,  deceased,  of  which  J.  D.  is  administrator, 
owes  and  is  justly  indebted  to  A.  Joy,  as  follows,  viz.: 

July  1st,  19 — ,  for  money  lent  by  him  to  said  R.  R $50  00 

Aug.  1st,  19—,  for  money  paid  by  him  to  H.  T.,  at  the  request 

and  for  the  use  of  said  R.  R 75  00 

Sept.  1st,  19 — ,  for  money  received  by  said  R.   R.  of  John 

Smith  for  the  use  of  sfiid  A.  Joy 25  00 

Oct.  1st,  19 — ,  for  work  done  and  materials  furnished  by  said 

A.  Joy,  in  and  about  building  a  shed  at  the  request  of  said 

R.   R 15  00 

Oct.  9,  19—,  for  goods  sold  by  said  A.  Joy  to  said  R.  R.,  at 

his  instance  and  request 17  20 

Oct.  7,  19 — ,  for  the  use  and  occupation  by  said  R.  R.  of  a 

certain  furnished  room  in  the  house  of  A.  Joy,  from  the  1st 

day  of  Aug.  to  the  1st  day  of  October,  19—,  at  $8  per  month     16  00 

Total    $19S  20 

or  say  :  St.  Joseph,  Mo.,  Sept.  1,  19 — . 

R.  R,  in  account  with  A.  Joy.  Dr. 

1^_^  May  10,  to  money  lent $50  40 

19 — ,  May  14,  to  five  tons  of  coal 30  00 

(Continue  to  the  end  of  the  account.) 

77  Rev.  St.  1909,  §  204. 

7  8  Britian  v.  Fender,  116  Mo.  App.  9^,   92  S.  W.  179. 


§  269  ALLOWANCE   OF   DEMANDS  277 

The  demand  should  state  sufficient  facts  to  give  notice  of 
the  nature  of  the  claim  to  be  established.^" 

§  268.  Same — Waiver  of  Notice. — The  executor  or  ad- 
ministrator may  appear  in  court,  or  by  writing,  waive  the 
service  of  such  notice.^"  When  the  notice  is  waived  in  open 
court,  the  fact  should  be  entered  of  record,  but  when  the 
waiver  is  by  writing  it  should  be  filed  with  the  papers  as  a 
part  of  the  proceedings  in  relation  to  the  claim.  A  verbal 
waiver  of  notice  out  of  court  is  not  good.®^  A  letter  written 
by  the  administrator  after  the  filing  of  an  account  in  the  pro- 
bate court  by  a  claimant,  stating  that  he  thought  the  matter 
might  be  adjusted  and  that  it  was  his  purpose  to  be  fair  with 
them,  and  that  he  thought  the  matter  could  be  fixed  up  when 
the  court  met,  and  requesting  that  the  claimant  be  present  on 
that  date,  was  held  not  to  be  sufficient  written  evidence  of  an 
intention  by  the  administrator  to  waive  notice  of  the  presenta- 
tion of  the  demand  against  the  estate. ^^ 

The  notice  may  be  in  this  form: 

Waiver  of  Notice  by  Administrator,  Etc. 

(Indorse  this  waiver  on,  or  attach  it  to,  the  demand.) 
I,  J.  D.,  administrator  of  the  estate  of  R.  R.,  deceased,  do  hereby 
waive  the  service  of  any  notice  on  me  of  the  presentation  of  the 

above  demand  to  the  probate  court  of county,  for  allowance 

against  said  estate.  J.  D., 

Administrator. 
January  — ,  19 — . 

§  269.  Same — Affidavit  to  Demand. — Before  the  court 
will  allow  any  claim  presented  against  an  estate,  whether  it  is 
indebted  to  the  claimant,  or  he  is  indebted  to  it,  after  allowing 
all  just  credits  and  ofif-sets,  he  must  make  oath  in  open  court, 
or  file  an  affidavit  with  his  claim,  stating  that  to  the  best  of 
his  knowledge  and  belief,  he  has  given  credit  to  the  estate  for 
all  payments  and  ofT-sets  to  which  it  is  entitled,  and  that  the 
balance  claimed  is  justly  due.  (Or,  if  there  is  a  balance  due 
the  estate,  say,  and  that  his  account  or  demand  as  presented 

TO  Lenk  Wine  Co.  v.  Caspari,  11  Mo.  App.  .''>82;  Soligman  v.  Rosers. 
11.3  Mo.  042.  21  S.  W.  94 ;  Swartz  v.  Nicholson,  65  Mo.  HOS. 

80  Rev.  St.  1909,  §  205;  Stephens  v.  Bernays.  119  Mo.  14.3.  24  S. 
W.  46:  Wernse  v.  McPike.  100  Mo.  476,  13  S.  W.  809;  Kincheloe  v. 
Gorman's  Adm'rs.  29  Mo.  421. 

81  Bambrick  v.  Bambrick.  157  Mo.  423.  58  S.  W.  8. 

«2  Taylor  v.  George,  159  Mo.  App.  160,  140  S.  W.  611. 


278  ALLOWANCE    OF    DEMANDS  §  269 

is  correctly  stated.)  ®^  The  proper  verification  of  a  demand  by 
the  claimant  either  by  affidavit  or  under  oath  in  open  court  is 
a  condition  precedent  to  the  court's  exercise  of  jurisdiction  to 
allow  the  claim. ^*  The  oath  of  the  claimant  may  be  made  in 
open  court  orally,  and  it  is  not  necessary  to  note  it  on  the  rec- 
ord. ^^ 

On  appeal  from  a  finding  of  the  probate  court  it  has  been 
held  that  the  verification  of  a  demand  is  not  so  far  jurisdic- 
tional that  the  facts  required  to  be  stated  in  it  must  appear  of 
record.  It  will  be  presumed  that  these  facts  were  supplied  by 
oral  proof.^®  But  the  usual  practice  is  to  file  a  written  affida- 
vit of  the  fact  with  or  annexed  to  the  claim. 

Affidavit  to  Demand  Against  an  Estate 

State  of  ,      /  „„ 

County. 


Absalom  Joy,  the  above  named  claimant,  makes  oath  and  says, 
that  to  the  best  of  his  knowledge  and  belief,  he  has  given  credit  to 
the  estate  of  R.  R.,  deceased,  for  all  payments  and  ofll-sets  to  which 
it  is  entitled,  and  tliat  the  balance  claimed  is  justly  due.  (Or,  if 
there  is  a  balance  due  the  estate,  say,  and  that  his  account  or  de- 
mand as  presented  is  correctly  stated.)  ABSALOM  JOY. 

Sworn  to  and  subscribed  before  me,  this day  of ,  19—. 

J.  R., 
(Style  of  Office.) 

§  270.  Same — By  Agent. — The  affidavit  or  oath  required 
may  be  made  by  an  agent  when  he  had  the  management  and 
transaction  of  the  business  out  of  which  the  demand  originated, 
or  when  he  has  had  the  means  of  knowing  personally  the  facts 
required  to  be  sworn  to ;  and  the  affidavit  must  in  such  case 
contain  a  statement  of  the  facts  which  authorize  the  agent  to 
make  it.^''     No  affidavit  is  required  when  the  suit  is  brought 


8  3  Rev.  St.  1900,  §§  201.  202;  Jenkins  v.  Morrow,  131  Mo.  App. 
288,  109  S.  W.  1051;  Waltemar  v.  Schnick's  Estate,  102  Mo.  App. 
1.33,  70  S.  W.  1053 ;  Merchants'  Bank  y.  Ward's  Adm'r,  45  Mo.  310. 

84  Fitzpatrick  v.  Stevens,  114  Mo.  App.  497,  89  S.  W.  897. 

8  5  Kincheloe  v.  Gorman's  Adm'rs,  29  Mo.  421;  Wood  v.  Flanery, 
89  Mo.  App.  632. 

8'!  Wagoner  Undertaking  Co.  v.  Jones,  1.34  Mo.  App.  101,  114  S. 
W.  1049. 

8  7  Rev.  St.  1909,  §  202;  Peter  v.  King,  13  Mo.  143;  Lenk  Wine  Co. 
v.  Casi)ari,  11  Mo.  App.  382;  Dawson  v.  Wombles,  104  Mo.  App.  272, 
78  S.  W.  823. 


§  271  ALLOWANCE    OF    DEMANDS  279 

in  the  usual  way  in  another  court/®     The  affidavit  by  the 
agent  may  be  as  follows : 

Affidavit  to  Demand  by  Agent 

State  of  ,        (  _ 

County  of  .  j 

Siiiion  Joy,  makes  oath  and  says,  that  he  is  the  agent  of  Absalom 
Joy,  the  above  naiiUMl  chiiinant,  and  as  such  had  the  management 
and  transaction  of  the  business  out  of  which  the  above  and  foregoing 
deniaml  originated,  and  to  tlie  best  of  liis  knowledge  and  belief  cred- 
its have  been  given  to  the  estate  of  U.  II.,  deceased,  for  all  payments 
and  off-sets  to  which  it  is  entitled,  and  the  balance  claimed  is  justly 
due,  (or  say:  has  had  the  means  of  knowing  personally,  that  credits 
have  been  given  to  the  estate  of  It.  K.,  deceased,  for  all  payments 
and  off-sets  to  which  it  is  entitled,  and  that  the  balance  claimed  is 
justly  due).  SI.MON  JOY, 

Agent  for  Absalom  Joy. 

Sworn  to,  etc. 

Such  affidavits,  when  required,  will  be  liberally  con- 
strued,®* but  cannot  be  received  as  evidence  of  the  demands 
to  which  they  relate.  The  claimant  must  establish  his  demand 
by  legal  testimony  without  regard  to  the  oath  or  affidavit  re- 
quired of  him  as  to  the  allowance  of  payments  and  off-sets  and 
the  correctness  of  his  demand. "^ 

§  271.  When  the  Claim  is>  Before  the  Court  for  Hearing. 
— When  a  claimant  has  presented  his  demand  to  the  court, 
served  the  executor  or  administrator  with  the  notice  required, 
or  it  has  been  waived  in  open  court  or  in  writing,  and  has 
taken  the  oath,  or  made  the  affidavit  required  by  him,  his 
claim  may  be  said  to  be  fairly  and  legally  before  the  court 
for  examination  and  allowance.  No  other  pleading  is  re- 
quired of  him.  Indeed,  it  is  the  duty  of  the  court  to  hear 
and  determine  all  demands  in  a  summary  way.  without  the 
form  of  pleading,  and  receive  the  evidence  of  competent  wit- 
nesses, or  other  legal  evidence. ^^  If  the  amount  claimed 
does  not  exceed  ten  dollars,  and  the  administrator,  in  open 
court  or  in  his  waiver  of  notice,  certify  that  he  is  satisfied 
with  the  correctness  of  the  claim,  or  if  the  claimant  shall 

88  stiles  V.  Smith,  ;")"»  Mo.  ?A>^. 

8  9  Merchants'  Rank  v.  Ward's  Adm'r,  45  Mo.  .310;  Lenk  Wine  Co. 
V.  Caspari.  11  Mo.  -Vpp.  oSli ;  Waltemar  v.  Schnick's  Instate,  lOl'  Mo. 
App.  1.3.3,  76  S.  W.  10.-.:{. 

9  0  Rev.  St.  100!>,  §§  1201,  20'_*;  Lenk  Wine  Co.  v.  Caspari,  11  Mo. 
App.  3S2. 

"1  Rev.  St.  1909.  §  '200. 


280  ALLOWANCE   OF   DEMANDS  §  272 

file  the  affidavit  of  a  competent  witness  to  the  correctness 
of  the  demand,  it  may  be  allowed  without  further  proof.°- 
Either  party  may  take  depositions  to  be  used  in  the  probate 
court  under  the  general  law  authorizing  the  use  of  such  tes- 
timony.    Such  has  been  the  practice  in  Missouri.^^ 

§  272.  Payment  of  Demand  Without  Being  Allowed. — 
The  administrator  cannot  legally  pay  a  claim  until  it  has  been 
allowed  by  the  court,  and  a  single  or  entire  demand  cannot  be 
split  up  into  several  demands  so  as  to  bring  them  below  ten 
dollars  to  be  allowed  without  proof.  Nor  can  the  creditor 
present  it  to  the  court  in  piecemeal. »*  The  administrator  has 
no  power  or  authority  to  himself  present  to  the  court  the  claim 
of  a  third  person  for  allowance.''^  Where  a  legitimate  claim 
is  paid  by  an  executor,  that  is,  one  which  could  have  been  le- 
gally probated,  the  fact  that  it  was  not  first  presented  and  al- 
lowed by  the  court  does  not  of  itself  deprive  the  executor  of 
right  to  credit  for  such  payment  as  to  heirs  and  devisees.®^ 
The  creditors  may  have  ground  for  complaint  as  to  such  ac- 
tion if  it  develops  that  there  is  a  deficiency  of  assets  to  pay  in 
full  the  indebtedness  of  the  estate.**^ 

§  273.  Set-Off,  or  other  Defense  to  Demand. — An  ex- 
ecutor or  administrator  may  exhibit  any  set-off  or  other  de- 
fense against  any  suit  or  other  proceeding  instituted  against 
the  estate,  which  the  testator  or  intestate  might  have  made  in 
his  lifetime.^^  As  we  have  said,  the  rules  of  pleading  are  not 
applicable  to  proceedings  in  allowing  demands  in  courts  of  pro- 
bate jurisdiction.  Their  decisions  should  be  so  rendered  as  to 
subserve  the  ends  of  justice,  according  to  the  evidence,  without 
regard  to  technical  precision  in  pleading.^^  Yet  if  the  adminis- 
trator has  an  off-set  in  favor  of  the  estate  against  the  demand 
of  the  claimant,  he  must  file  it  in  writing,  before  the  trial  is 
commenced.^""  If  he  should  fail  to  set  it  up.  he  would  not  be 
permitted  to  offer  evidence  in  relation  to  it,  nor  could  he,  in  the 
case  of  appeal  from  the  probate  court,  set  it  up  in  the  appel- 

9  2  Rev.  St.  1901>,  §  20G. 

83  Rev.  St  1900,  §§  207,     63S4. 

84  pfeiffer  v.  Suss,  73  Mo.  245. 

•  6  Jenkins  v.  Morrow,  131  Mo.  App.  288,  109  S.  W.  1051. 
»6  Judson  V.  Bennett,  233  Mo.  C07,  136  S.  W.  G81. 
97  Judson  V.  Bennett.  233  Mo.  607.  136  S.  W.  681. 
9  8  Rev.  St.  1909,  §  200;  In  re  Jarboe's  Estate,  227  Mo.  59,  127  S. 
W.  26 :  Mitchell  v.  Martin,  63  Mo.  App.  560. 
9  9  Sublett  V.  Nelson,  88  Mo.  487. 
100  Ante,  §  248. 


§  274  ALLOWANCE   OF   DEMANDS  281 

late  court.^**^  There  are  some  defenses,  however,  which  need 
not  be  set  up  in  writing,  as  payment,  want  of  consideration, 
fraud,  limitation,  statute  of  frauds,  or  any  other  matter  that 
goes  to  defeat  the  demand,  except  set-off  or  counter  claim. 
Yet  the  administrator  might  set  up  in  writing  any  defense  he 
may  have,  if  he  chooses  to  do  so.  If  the  defense  of  the  ad- 
ministrator is  that  the  account  has  been  paid  upon  which  the 
claim  is  based  the  burden  rests  upon  him  to  show  such  by 
proof .^''-  An  executor  or  administrator  is  not  required  to 
make  an  affidavit  in  relation  to  any  demand  in  favor  of  the 
estate  which  accrued  prior  to  his  letters  of  administration.^"^ 
§  274.  Trial  by  Court  or  Jury. — If  the  demand  or  set-off 
does  not  exceed  twenty  dollars,  or  if  neither  party  require  a 
jury,  the  court  may  hear  and  determine  the  case.  But  if  the 
'  demand  or  set-off  exceeds  twenty  dollars,  and  either  party  re- 
quires a  jury,  one  must  be  immediately  summoned,  and  the 
trial  conducted  in  a  summary  manner  without  the  form  of 
pleading.^"*  The  jury  should  be  summoned  and  empaneled 
as  in  other  civil  causes  in  courts  of  record.  The  officer  must 
summon  and  return  eighteen  qualified  jurors.  Each  party  is 
entitled  to  challenge  peremptorily  three  jurors;  but  when 
there  are  several  plaintiffs  or  defendants  they  must  join  in 
their  challenges,  and  the  plaintiff  must  in  all  cases  announce 
his  challenges  first. ^°^  No  party  can  be  required  to  make  per- 
emptory challenges,  before  a  panel  of  competent  jurors,  equal 
to  the  number  of  peremptory  challenges  of  both  parties,  and 
twelve  in  addition  are  obtained.  Twelve  jurors  constitute  a 
leeal  i"rrv.  On  the  trial  of  a  cause,  whether  by  the  court  or 
by  a  jury,  the  court  must  be  governed  by  the  general  rules  of 
evidence,  and  the  trial  should  be  conducted  throughout  as  trials 
in  civil  cases  in  courts  of  record,  unless  a  different  provision 
is  made  by  law  for  the  government  of  the  same.  In  a  former 
chapter  we  have  shown  who  are  competent,  and  who  are  in- 
competent to  testify  as  witnesses  in  suits  by  or  against  admin- 
istrators. ^"^  The  same  rules  apply  in  the  trial  of  claims  pre- 
sented against  estates. 

101  Berrv  v.  Shackelford's  Adm'rs,  38  Mo.  .392. 

102  Trimble  v.  Moore.  125  Mo.  App.  601,  102  S.  W.  1057. 

103  Rev.  St.  1000.  §  202. 

104  Rev.  St.  1000,  §§  208.  200:  Bradley  v.  Woenier.  46  Mo.  App. 
371;  Stevens  v.  I.arwill.  110  Mo.  App.  140,  84  S.  W.  113;  Crawford 
V.  Doppler,  120  Mo.  302.  25  S.  W.  93. 

10  5  Rev.  St.  1000.  §  7281. 
IOC  Ante.  §  2.55. 


282  ALLOWANCE    OF   DEMANDS  §  274 

It  has  not  been  decided  by  courts  of  last  resort  in  Missouri 
that  a  probate  court  of  this  state,  in  the  exercise  of  its  statutory 
power  to  hear  the  evidence  and  consider  the  law  concerning 
demands  pending  before  it,  may  refer  such  as  involve  long  ac- 
counts or  the  adjustment  of  numerous  claims  and  counter- 
claims to  a  referee  for  his  finding  on  the  facts.  Yet  it  would 
seem  to  follow  that  the  probate  court  would  have  the  authority 
to  order  a  reference  without  consent  in  proper  cases,  as  a  ref- 
erence is  the  usual  instrumentality  of  other  courts,  by  which 
conclusions  are  reached  where  long  and  complicated  accounts 
are  to  be  investigated.  It  has  been  decided  by  the  Supreme 
Court  of  Missouri  that  a  reference  may  be  had  by  the  con- 
sent of  all  parties  concerned ;  the  probate  judge  being  given 
by  such  consent  the  power  to  appoint  the  referee,  and  that  a 
judgment  based  upon  the  referee's  findings  amounts  to  an 
agreed  judgment  and  is  binding  on  all  parties  so  consenting. ^"^ 

§  275.     Same — When  the  Claim  is  Founded  on  a  Note 

or  other  writing  purporting  to  have  been  signed  by  the 
decedent,  its  execution  must  be  shown  by  proving  the  gen- 
uineness of  his  signature.^"^  In  general  when  any  pleading 
is  founded  upon  any  instrument  in  writing  charged  to  have 
been  executed  by  the  other  party,  its  execution  stands  ad- 
mitted unless  it  is  denied  under  oath,  and  an  averment  of 
partnership  or  of  a  corporation  also  stands  admitted,  un- 
less denied  by  the  opposite  party,  but  in  a  suit  upon  any 
such  instrument  against  an  executor  or  administrator  or 
any  county,  city  or  town,  its  execution  must  be  proved  in 
order  to  admit  it  in  evidence.  Either  party  may  take  dep- 
ositions in  the  ordinary  manner  and  read  them  in  evidence 
in  support  of  his  demand. ^'^^ 

The  statute  provides  that  depositions  may  be  taken  by 
any  party  to  the  suit  to  be  used  conditionally.^^*'  If  the 
witness  resides  in  this  state  it  may  be  taken  upon  notice, 
and  no  commission  is  necessary;  but  if  he  resides  out  of 
the  state  the  party  desiring  his  testimony  may  sue  out  of 
the  court  in  which  the  suit  is  pending,  or  out  of  the  office 
of  the  clerk,  a  commission  to  take  the  deposition  of  said 

10  7  In  re  Jarboe's  Estate,  227  Mo.  59,  127  S.  W.  2G. 
losMalion's  Adm'r  v.  Hawyor,  18  Ind.  7o ;  Armor  v.  Pye,  25  Kau. 
731. 

109  Rev.  St.  1909,  §§  1985,  1986;  Roberts  v.  Nelson,  87  Mo.  229; 
Parsons  v.  Egyptian  Levee  Co.,  73  Mo.  App.  458 ;  Wisdom  v.  Sliank- 
lin,  74  Mo.  App.  428;  Bates  v.  Scheili,  47  Mo.  App.  G42. 

110  Rev.  St.  1909,   §  6384. 


§  276  ALLOWANCE    OF    DEMANDS  283 

witness/"  The  commission  may  be  issued  without  no- 
tice to  the  adverse  party  that  it  will  l)c  applied  for,  and  it 
is  not  necessary  to  annex  interrogatories  to  it  for  the  wit- 
ness to  answer,  but  this  may  be  done  by  agreement  of  the 
parties;  and  the  opposite  party  may  waive  the  issuing  of 
such  commission,  but  unless  it  is  waived  it  is  essential  to 
the  validity  of  the  deposition."^ 

The  notice  may  be  as  follows: 
A.  Joj-,  plaintiff,  claimant,     1 

vs.  ^.  In  tlie  Probate  Court  of r.mnty. 

John  Doe,  adni'r,  defendant.  J 

Mr.  John  Doe,  administrator  of  the  estate  of  K,  K.,  deceased: 

You  are  hereby  notified  that  depositions  of  witnesses,  to  be  read 
in  evidence  in  the  above  cause  on  the  part  of  A.  Joy,  plaintiff  and 
claimant,  will  be  taken  at  the  dwelling  house  of  C.  L.  in  the  town 

of  W.,  in  the  county  of and  state  of ,  on  the day 

of ,  19—,  between  the  hours  of  o'clock  in  the  forenoon 

and  o'clock  in  the  afternoon,   and    that  the   taking  of  said 

depositions,  If  not  completed  on  that  day,  will  be  continued  from  day 
to  day  at  the  same  place  and  between  the  same  hours  until  com- 
pleted. A.  JOY,  Plaintiff. 

By  G T ,  his  Atty. 

I  accept  service  service  of  this  notice,  and   waive  the  issuing  of 

any  commission  in  this  behalf,  this day  of ,  19 — . 

JOHN  DOE,  Adui'r. 

By  H.  L.,  Atty. 

As  the  commission  is  quite  lengthy  and  printed  forms 
may  be  readily  obtained,  wc  omit  to  insert  it  here. 

§  276.  When  the  Demand  or  Set-Off  is  not  Due  at  the 
time  of  the  trial,  the  court  may  adjust  the  same,  and  render 
judgment  for  the  amount,  according  to  the  finding  of  the 
the  jury  or  judgment  of  the  court,  but  the  finding  or  judg- 
ment shall  not  include  interest  thereon  beyond  the  date  of 
the  same."^  When  the  note  is  not  due  and  bears  no  in- 
terest until  after  maturity,  and  the  parties  do  not  agree  to 
a  rebate,  the  court  may  allow  and  classify  the  demand  with 
interest  after  maturity,  but  no  execution  will  issue  until  it 
would  be  due.^^* 


111  Rev.  St.  1909,  §  or.SS;  Glenn  v.  Hunt,  120  Mo.  n.'IO.  25  S.  W. 
181 ;  Hendricks  v.  St.  Louis  Transit  Co.,  124  Mo.  App.  l.iT,  101  S. 
W.  G75. 

112  Glenn  v.  Hunt,  120  Mo.  330,  25  S.  W.  181;  Delisle  v.  Mc- 
Gillivary,  24  Mo.  App.  (ISO. 

113  Rev.  St.  19(X>,  §  210. 

114  Cassatt  V.  Vogel.  94  Mo.  64G,  8  S.  W.  169. 


284  ALLOWANCE   OF   DEMANDS  §  276 

Ordinarily  a  demand  not  due  cannot  be  the  foundation 
of  an  action  or  set-off,  but  it  may  be,  under  the  statute,  in 
the  adjustment  of  claims  against  decedent's  estates.  It  seems 
to  be  settled  law  that  a  claim  may  be  allowed  against  an 
estate,  although  not  due,  if  it  will  become  due  at  a  definite 
time.^^^  The  probate  court  has  no  power  to  allow  any 
claim  against  an  estate  which  requires  an  equitable  proceed- 
ing to  establish  it.^^«  It  has  jurisdiction,  however,  to  allow 
against  an  estate  any  money  demand,  whether  same  be 
legal  or  equitable  in  its  nature.^" 

§  277.  Demand  of  Executor  or  Administrator. — An  ex- 
ecutor or  administrator  may  establish  a  demand  against 
his  decedent  by  proceeding  against  his  co-executor  or  co- 
administrator in  the  manner  prescribed  for  other  persons; 
but  if  there  be  no  co-executor  or  co-administrator,  he  must 
file  his  claim  and  other  papers,  and  the  court  will  appoint 
some  suitable  person  to  appear  and  manage  the  defense/'^ 
The  appointment  should  be  noted  on  the  record;  the  en- 
try may  be  as  follows : 

Estate  of  R.  R.,  deceased: 

Now  comes  J.  D.,  the  administrator  of  said  estate,  and  files  his 

claim  against  said  estate  for  the  sum  of  and  cents, 

founded  on  a  (note,  or  account,  state  the  nature  of  the  demand,) 
and  there  heing  no  co-administrator  on  said  estate,  the  court  ap- 
points O.  K.,  a  suitahle  person,  to  appear  and  manage  the  defense 
against  said  demand. 

Where  there  is  a  demand  in  behalf  of  one  estate  to  be 
presented  for  allowance  against  another,  the  same  person 
cannot,  in  such  case,  act  as  the  administrator  of  both  es- 
tates, and  should  a  demand  be  allowed  under  such  circum- 
stances against  one  of  the  estates,  the  proceeding  would  be 
a  nullity.^^^     The  administrator  should  resign  the  adminis- 

iiMvavanaugh  v.  Shaughnessy,  41  Mo.  App.  057;  Empire  Paving 
&  Construction  Co.  v.  Prather's  Adm'r,  58  Mo.  App.  487;  Cassatt 
V.  Vogel,  U4  Mo.  646,  8  S.  W.  169. 

116  Hcudder  v,  Ames,  89  Mo.  490,  14  S.  W.  525;  Butler  v.  Lawson, 
72  Mo.  227 ;  First  Baptist  Church  v.  Rohberson,  71  Mo.  320. 

117  In  re  Jarboe's  Estate,  227  Mo.  .59,  127  S.  W.  20;  Rice's  Ameri- 
can Probate  Law,  p.  265;  Johnson  v.  Johnson,  72  Mo.  App.  386; 
In  re  Estate  of  Elliott,  98  Mo.  379,  11  S.  W.  739;  Hammons  v.  Ren- 
frow,  84  Mo.  341. 

118  Rev.  St.  1909,  §  211. 

110  State,  to  Use  of  Miller's  Adm'r,  v.  Bidlingmaier,  20  Mo.  483; 
State,  to  Use  of  Mueller's  Adm'r,  v.  Reinhardt,  31  Mo.  95;  Statfr 
ex  rel.  Cardwell  v.  Stuart,  111  Mo.  App.  478,  86  S.  W.  471. 


§  279  ALLOWANCE    OF    DEMANDS  285 

tratioii  of  one  of  the  estates,  or  have  some  suitable  person 
appointed  by  the  court  to  appear  and  manage  the  defense 
to  the  claim. 

§  278.  Judgments,  etc.,  How  Entered. — In  a  suit  against 
an  executor  or  administrator  upon  a  demand  against  the 
deceased,  judgment  should  be  rendered  against  him  dc  bonis 
testatoris, — in  his  representative  character,  and  not  de  bonis 
propriis, — in  his  personal  character. ^^^ 

Form  of  Judgment 

A.  B.,  plaintiff,  ^ 

vs.  I 

J.  D.,  as  executor  of  the  es-   r 
tate  of  R.   R.,  deceased.  J 
Now  come  the  parties  and  this  cause  being  at  issue.  Is  by  agree- 
ment submitted  to  tlie  court  for  trial  \\ithout  a  jury,  and  the  court 
having  heard  the  evidence  and  argument  of  counsel,  doth  find  for  the 

plaintiff  in  the  sum  of dollars ;  it  is  therefore  adjudged  by  the 

court  that  the  plaintiff  recover  of  the  defendant  as  executor  of  the 

estate  of  R.  R,  deceased,  the  said  sum  of dollars,  so  found  as 

aforesaid,  with dollars  for  his  costs,  to  be  levied  of  the  prop- 
erty of  the  said  R.  R.,  deceased,  in  the  hands  of  the  defendant  to  be 
administered,  or  which  shall  hereafter  come  to  the  hands  of  the  de- 
fendant to  be  administered. 

§  279.  Costs,  How  Adjudged. — The  party  prevailing  is 
entitled  to  recover  his  costs  of  the  other  party,  except  in 
cases  where  different  provision  is  made  by  law.  The  claim- 
ant may  be  required  to  give  security  for  costs  as  in  civil 
cases. ^-^  The  rule  seems  to  be,  that  where  the  action  is  on 
a  demand  which  accrued  to  the  deceased  in  his  lifetime 
and  judgment  is  given  against  the  executor  or  administrator 
he  is  not  personally  liable  for  costs,  and  the  jtidgment  should 
be  against  him  in  his  representative  cai)acity  to  be  satisfied 
out  of  the  assets  of  the  estate, ^^^  but  when  the  cause  of  ac- 
tion accrues  to  the  executor  or  administrator  after  the  death 
of  the  intestate,  and  he  sues  and  fails  to  recover,  he  must 
pay  the  costs  himself;  ^-^  yet  the  statute  which  declares 
that  in  all  cases  in  which  costs  shall  be  given  against  ex- 

120  Laughlin  v.  McDonald,  1  Mo.  GS4. 

121  Rev.  St.  1009,  §  212. 

122  Koss  V.  Alleman,  60  Mo.  2G9;  Wooldridge  v.  Draper,  15  Mo. 
470;  Ranney  v.  Thomas,  45  Mo.  Ill;  State,  to  Use  of  Davis,  v. 
Maulsby,  53  Mo.  503. 

123  Wooldridge  v.  Draper,  15  Mo.  470;  Lewis  v.  McCabe,  IG  Mo. 
App.  398 ;  Ross  v.  Alleman.  60  Mo.  269. 


286  ALLOWANCE   OF   DEMANDS  §  280 

ecutors  and  administrators,  the  estate  shall  pay  them,  may 
relieve  these  parties  from  payment  of  costs. ^-*  Expenses 
incurred  by  an  executor  in  unsuccessfully  assailing  the  will 
by  raising  an  issue  of  ademption  is  not  proper  expenditure, 
and  the  estate  is  not  liable  for  costs  incurred  in  such  pro- 
ceeding.^-^ 

§  280.  Same— Different  Judgments,  Their  Effect.— A 
concise  entr}^  of  the  order  of  allowance  or  finding  must  be 
made  on  the  record  of  the  court,  which  will  have  the  force 
and  effect  of  a  judgment,^-*'  and  must  be  respected  as  such, 
but  it  is  not  a  lien  upon  the  estate.  The  administrator  has 
no  interest  in  the  real  estate  to  which  a  lien  can  attach.^-' 
The  decision  of  the  court  in  allowing,  or  disallowing  a  de- 
mand presented  for  allowance  against  an  estate,  is  a  judg- 
ment, and  is  attended  with  all  the  legal  consequences  of  a 
judgment  of  a  court  of  record  at  common  law.  Consequently, 
if  either  party  neglects  to  prosecute  an  appeal  in  the  man- 
ner provided  by  the  statute,  the  matter  becomes  res  ad- 
judicata  and  is  forever  closed  ;^-^  except  that  it  may  be 
set  aside  within  four  months  for  cause,  or  may  be  impeached 
for  fraud  in  a  court  of  equity.^^** 

The  following  forms  of  entries  may  be  useful: 

Judgment  of  Allozvance  by  Default 

Estate  of  R.  R.,  deceased,  ^ 

A.  B.,  claimant,  I  Demand    presented    for    allow- 

vs.  j       a  nee. 

J.  D.,  administrator  of  said  estate.J 

Now  comes  the  claimant,  A.  B.,  and  presents  to  the  conrt.  for  al- 
lowance against  said  estate,  a  demand  for  the  sum  of dollars 

and  cents,  founded  on  a  note  (or  state  what)  of  which  the 


124  Rev.  St.  1909,  §  212. 

125  Barnard  v.  Keathley.  230  Mo.  209,  1.30  S.  W.  306. 

126  Rev.  St.  1909,  §  198;  Mayberry  v.  McClurg.  51  Mo.  2.5G;  Philips 
V.  Ward,  51  Mo.  29.");  Dullard  v.  Hardy.  47  Mo.  403;  Jamison  v.  Wick- 
ham,  G7  Mo.  App.  575;  Level  v.  Farris,  24  Mo.  App.  445;  Jeffries 
v.  Ferguson,  87  INIo.  244 ;  Smith  v.  Sims,  77  Mo.  269 ;  Jenkins  v. 
Morrow,  131  Mo.  App.  288,  109  S.  W.  1051. 

127  Kennerly  v.  Shepley,  15  Mo.  040,  57  Am.  Dec.  219;  Sturgeon 
v.  Schanmburg,  40  Mo.  482,  93  Am.  Dec.  311. 

128  Jamison  v.  Wickham,  67  Mo.  App.  575;  McKinney's  Adm'r  v. 
Davis,  6  Mo.  .501  ;  Smith  v.  Sims,  77  Mo.  209 ;  Munday  v.  Leeper, 
120  Mo.  417,  25  S.  W.  381. 

12a  Mayberry  v.  McClurg,  51  Mo.  256. 


§  280  ALLOWANCE    OF   DEMANDS  287 

following  Is  a  copy:  [copy  the  note  or  account,  or  if  the  account  or 
instrument  is  lengthy,  give  the  substance  of  it]. 

And  it  appearing  from  the  notice  and  return  of  service  thereon, 
that  said  J.  D..  administrator  of  said  estate,  has  been  duly  notified 
of  the  presentation  of  said  demand  to  llie  court  for  allowance  more 
than  ten  days  prior  to  the  first  day  of  the  present  term  of  this  court, 
and  the  court,  having  taken  the  oath  [or  aflidavit]  of  the  said  A.  B., 
that  to  the  best  of  his  knowledge  and  belief  he  has  given  credit  to 
the  estate  for  all  payments  and  off-sets  to  which  it  is  entitled,  and 
that  the  balance  claimed  is  justly  due,  and  liaving  heard  the  evi- 
dence adduced  by  the  claimant  in  pruof  of  his  demand,  it  is  ordered 
by  the  court  that  the  demand  of  the  said  A.  B.  be  allowed  against 

said  estate  to  tlie  amount  and  sum  of dollars  and cents, 

and  that  it  be  assigned  to  the  fifth  class,  and  that  said  administra- 
tor shall  pay  the  costs  of  this  proceeding,  taxed  at  dollars 

and  cents,  out  of  the  assets  in  liis  hands. 

Jiidi;;]nciit  Against  Chiiinaiit 

Estate  of  R.  R.,  deceased,  "| 

A.  B.,  plaintiff,  I  Demand    founded    on    a    note 

vs.  I      presented  for  allowance. 

J.  D..  administrator  of  said  estate.  J 

Now  come  the  parties,  and  the  said  A.  B.  presents  to  the  court 

for  allowance  against  said  estate,  a  demand  for  the  sum  of  

dollars  and cents,  founded  on  a  note  purporting  to  have  beeij. 

given  by  the  said  R.  R.,  deceased,  on  the day  of  — ,  19 — , 

for  the  sum  of dollars  and  cent.s,  due  one  year  after 

date,  and  payable  to  E.  F.,  and  by  him  assigned  to  the  said  A.  B. 
The  court  having  heard  the  evidence  of  the  parties,  doth  order  and 
adjudge  that  said  claim  be  disallowed  and  that  the  plaintiff"  take 
nothing  by  reason  of  his  demand,  and  that  he  pay  the  costs  of  this 
proceeding,  taxed  at  dollars  and  cents. 

Judgment  in  Case  of  a  Jury  Trial 

Estate  of  R.  R.,  deceased. 
A.  B.,  plaintiff, 

vs. 
J.  D.,  administrator  of  said  estate, 

defendant. 

Now  come  the  parties,  and  the  said  A.  B.  presents  to  the  court 
for  allowance  against  said  estate  a  demand  for  (he  sum  of dol- 
lars, foinidcd  on   [describe  the  claiml ;    and  the  said  J.  D.,  as  such 

administrator,  exhibits  against  the  .same  an  oft-set  of  dollars, 

founded  on  [describe  the  off-set].  And  the  plaintiff  having  required 
a  jury,  now  liere  comes  the  jury,  to-wit:  [set  out  the  names  of  the 
jurors],  twelve  good  and  lawful  men,  qualified  to  serve  as  jurors, 
who  having  been  duly  emi)aneled  and  severally  sworn  to  try  the 
matter  in  difference  between  ^aid  parties  in  said  cause,  and  a  true 
A'erdict  give  according  to  the  law  and  the  evidence,  and  having  heard 
the  evidence  and  argument  of  counsi'l.  after  mature  deliberation 
thereon,  return  into  court  the  following  verdict,  viz.:    We,  the  jury, 


Demand    for    plaintiff    — 
presented  for  allowance. 


288  ALLOWANCE   OF   DEMANDS  §  280 

liud  for  the  plaintiff  the  sum  of  dollars  and  cents; 

and  for  the  defendant  the  sum  of  dollars  and  cents; 

and  after  deducting  the  sum  found  for  the  defendant  from  the  sum 

found  for  the  plaintiff,  do  find  for  the  plaintiff  the  sum  of  

dollars.  O.  K.,  Foreman. 

It  is  therefore  considered  by  the  court  that  the  sum  of dol- 
lars, so  found  as  aforesaid  by  the  jury,  be  allowed  in  favor  of  the 
plaintiff  against  said  estate,  and  that  the  same  be  assigned  to  the 
sixth  class.  It  is  further  ordered  that  said  J.  D.,  as  such  administra- 
tor, pay  the  costs  of  this  proceeding  out  of  the  assets  of  the  estate, 
taxed  at dollars  and cents. 

§  281.  Abstract  of  Demands  Allowed,  to  be  Kept  by 
Clerk  or  Judge. — The  clerk  (or  judge  of  probate)  must  keep 
an  abstract  of  all  judgments  of  other  courts  filed,  and  of 
all  demands  established  in  the  probate  court  against  an  es- 
tate, which  must  show  their  amount,  date  and  class,  and 
to  whom  payable. ^^^  Interest  may  be  allowed  on  a  claim 
legally  entitled  thereto,  though  not  called  for  in  the  no- 
tice.^^^  When  a  judgment  of  a  court  of  record  is  filed,  and 
when  a  demand  is  allowed  against  an  estate,  the  court  must 
determine  its  class,  and  the  clerk  must  make  an  entry  thereof 
in  his  abstract ;  and  also  enter  on  the  demand  the  amount 
allowed  and  the  class  to  which  it  belongs,  and  deliver  it  to 
the  claimant.  When  claims  are  thus  classed  the  executor 
or  administrator  may  satisfy  them  according  to  their  classi- 
fication.^^^ Indeed,  demands  must  be  paid  by  the  executor 
or  administrator  as  far  as  he  has  assets,  in  the  order  in 
which  they  are  classed,  and  no  demand  of  one  class  should 
be  paid  until  all  the  demands  of  the  previous  classes  are 
satisfied.  If  there  are  not  sufficient  assets  to  pay  the  whole 
of  any  one  class,  such  demands  must  be  paid  in  proportion 
to  their  amounts,  and  they  may  assign  the  notes,  bonds, 
stocks,  accounts  and  other  evidences  of  debt  of  the  estate 
to  creditors,  legatees  and  distributees  in  discharge  of  their 
claims,  equal  to  the  amount  of  such  bond  or  note.^^^  They 
should  have  an  order  of  court  to  authorize  it/^* 

130  Rev.  St.  1909,  §  213. 

131  Harwood  v.  Larramore,  50  Mo.  414. 

132  Rev.  St  1909,  §§  214.  215;  Cooper  v.  Duncan,  20  Mo.  App.  .355; 
Nelson  v.  Russell's  Adm'r,  15  Mo.  356;  Ryans  v.  Boogher,  169  Mo. 
673,  69  S.  W.  104S;  Ritchey  v.  Withers,  72  Mo.  556. 

133  Rev.  St.  1909,  §  216;  Schoeneich  v.  Reed,  8  Mo.  App.  .356;  In 
re  McCune's  Estate,  76  Mo.  200;  Stagg  v.  Linnenfelser,  59  Mo.  336;' 
Chandler  v.  Stevenson,  68  Mo.  450;  Christy  v.  Chicago,  B.  &  K.  C. 
Ry.  Co..  70  Mo.  App.  43. 

134  Weil  V.  Jones,  70  Mo.  500;  Marshall  v.  Meyers,  96  Mo.  App. 
643.  70  S.  W.  927. 


§  283  ALLOWANCE    OF    DEMANDS  289 

§  282.  Order  Classing  Demand  Has,  Effect  of  Judgment. 
— The  statute  does  not  require  that  a  classification  of  a 
demand  should  be  entered  on  the  record  at  large.  An  en- 
dorsement of  its  class  on  the  claim  itself,  and  an  entry  on  the 
abstract  book  is  sufficient  to  give  the  classification  valid- 
j|.y  13  5  'pj^g  action  of  the  court  in  classifying  a  demand  has 
the  force  of  a  judgment;  ^^"  and  cannot  be  changed  by  the 
court  at  a  subsequent  term,  but  upon  such  facts  only  as 
would  authorize  the  court  to  set  aside  or  modify  its  judg- 
ment in  other  particulars,  and  this  could  not  be  done  after 
the  administrator  has  exhausted  the  assets  in  the  payment 
of  debts. "^  The  validity  of  a  judgment  of  the  probate 
court  allowing  a  claim  and  classifying  it  cannot  be  attacked 
in  the  circuit  court  on  appeal  taken  from  a  denial  of  an 
order  to  pay  the  demand  pursuant  to  the  judguient  as  the 
jurisdiction  of  the  circuit  court  is  derivative. ^'^  The  classi- 
fication of  a  demand  against  an  estate,  if  erroneous,  should 
be  appealed  from  when  made,  or  within  such  time  as  is  al- 
lowed for  taking  appeals  from  the  judgments  and  decisions 
of  courts  in  probate  matters. ^^'' 

The  classification  made  by  an  administrator  when  a  de- 
mand is  exhibited  to  him  does  not  entitle  it  to  be  paid  in 
that  class.  Its  class  must  be  determined  by  the  court.  The 
judge  cannot  allow  a  claim  in  vacation.  The  endorsement 
of  the  clerk  on  a  demand  when  allowed  and  classed  by  the 
court  may  be  as  follows : 

Indorsement  of  Allowance  and  Class 

Allowed  on  the   within   demand   by   the  probate  court  of  

county,  the  sum  of dollars  and  cents,  and  ordered  to 

be  assigned  to  the  class,  and  to  be  paid  accordingly.     This 

day  of ,  19—.  T.  C, 

(Style  of  Office.) 

§  283.  Allowance  of  Demand  where  Executor,  etc.,  Tem- 
porarily Absent. — If  an  executor  or  administrator  is  tem- 
porarily absent  from  the  state,  he  may  appoint  an  agent 
in  writing   (and  file  the  appointment  in  the  office  of  the 

iSB  Nelson  v.  Russell's  Adm'r,  1.5  Mo.  3.56. 

186  Miller  v.  Janney's  Ex'r,  15  Mo.  205;  Wernse  v.  McPike,  100 
Mo.  47G,  i;i  S.  W.  809. 
137  Nelson  v.  Russell's  Adm'r.  15  Mo.  .356. 
13  s  Dooley  v.  Ryan's  Estate,  153  Mo.  App.  669.  134  S.  W.  30. 
139  Cohen  v.  Atkins,  73  Mo.  163;    Ritehey  v.  Withers,  72  Mo.  556. 
KEi.Mo.P.d.— 19 


290  ALLOWANCE    OF    DEMANDS  §  284 

court  having  jurisdiction  of  the  estate),  to  whom  notice  of 
the  demands  against  the  estate  may  be  given ;  but  upon 
faikire  to  appoint  an  agent  the  notice  may,  in  such  case,  be 
filed  in  the  offtce  of  the  court  having  jurisdiction  of  the  es- 
tate. Notice  given  to  such  agent,  or  filed  as  aforesaid 
among  the  papers  relating  to  the  estate  against  which  the 
demand  is  claimed,  is  as  effectual  as  if  it  had  been  given  to 
the  executor  or  administrator.^*"' 

§  284.     Judgment  for  Allowance  May  be  Set  Aside. — The 

executor  or  administrator,  heir  or  creditor,  of  any  estate 
may,  \\ithin  four  months  after  a  demand  has  been  allowed, 
file  the  affidavit  of  himself  or  of  some  other  credible  per- 
son, in  the  office  of  the  court,  stating,  that  the  affiant  has 
good  reason  to  believe  and  does  believe,  that  such  demand 
has  been  improperly  allowed,  and  shall  furnish  satisfactory 
evidence  to  the  court  of  that  fact,  and  that  notice  had  been 
given  to  the  opposite  party  or  parties  in  interest,  the  court 
will  vacate  the  order  of  allowance,  and  try  the  matter  anew 
and  allow  or  reject  the  demand  as  shall  be  right.  If  upon 
the  new  hearing  the  demand  is  allowed,  it  must  be  classed 
and  paid  as  if  the  new  hearing  had  not  been  granted. ^*^ 
The  probate  court  may  set  aside  an  allowance  of  a  claim 
upon  the  proper  affidavit  being  filed  and  for  good  cause 
shown  therefor  within  four  months  after  it  was  allowed  ; 
but  after  that  the  proceeding  to  set  aside  such  allowance 
must  be  in  a  court  of  equity,  and  must  be  based  upon  some 
ground  which  brings  it  within  the  control  of  a  court  of 
equity,  such  as  fraud  or  mistake.^*'  A  mistake  in  the  entry 
allowing  a  demand  may  be  corrected  by  a  nunc  pro  tunc 
entry.^*^ 

The  affidavit  of  the  administrator  or  executor  upon  which 
the  court  may  vacate  or  set  aside  an  allowance  may  be  as 
follows : 

Affidavit  of  Bxecxitor,  Etc. 

State  of  Missouri,     ] 

County  of .  j 

J.  D.,  executor  (or  administrator)  of  the  estate  of  R.  R.,  deceased, 
makes  oath  and  says,  that  at  the  term,  19 — ,  of  the  

140  Rev.  St.  1009,  §  21S;  Martin  v.  La  Master,  G.3  Mo.  App.  .",12. 

141  Rev.  St.  1909,  §  220;  Keele  v.  Keele,  118  Mo.  App.  202,  94 
S.  W.  775. 

142  Stewart  v.  Caldwell,  54  Mo.  5.36. 
14  3  Ritchey  v.  Withers,  72  Mo.  55G. 


§  284  ALLOWANCE    OF    DEMANDS  291 

court  of  said  county,  a  demand  was  allowed  against  said  estate,  in 
favor  of  A.  B.  for  the  sum  of  dollars,  founded  upon  an  ac- 
count, and  that  this  atliaiit  has  good  reason  to  believe  and  does  be- 
lieve, that  said  demand  has  been  improiH-Tly  allowed  in  this,  to- 
wit:  (here  state  the  objections  to  the  allowance)  wherefore  he  asks 
that  said  order  of  allowance  may  be  vacated  and  that  the  matter 
may  be  tried  anew,  and  such  order  made  in  the  premises  as  may  be 
ri<;;ht.  J-  B.,  Executor,  etc. 

Sworn  to,  etc. 


292  DUTIES   OF  EXECUTOES,  ETC.  §  285 


CHAPTER  XXIII 

DUTIES  OF  EXECUTORS  AND  ADMINISTRATORS  RESPECT- 
ING THE  SALE  AND  CONVEYANCE  OF  REAL  ESTATE 

§  2S5.  Sale  of  land  under  power  contained  in  a  will. 

2S6.  Same — By  whom  the  power  may  be  executed. 

287.  Same — Form  of  deed. 

288.  When  the  sale  is  for  a  specific  purpose. 

289.  Executory  contract  by  deceased  for  purchase  of  land. 

290.  Same — Petition — Order  of  sale. 

29L  Same — Report  and  confirmation  of  sale. 

292.  Contract  for  sale  of  land  by  deceased — Enforced. 

293.  Same — Order  of  court  and  deed. 

294.  Same — Case  may  be  transferred  to  circuit  court. 

295.  Same — Proceeding  by  executor,  etc. 

296.  Specific  performance  of  contract  enforced. 

297.  Contract  may  be  cancelled,  etc. 

We  have  in  a  previous  chapter  referred  to  the  nature  and 
extent  of  the  interest  which  an  executor  or  administrator 
has  in  the  real  estate  of  the  decedent  and  will  not  discuss 
this  subject  at  greater  length  in  this  chapter.^  We  shall 
here  point  out  the  circumstances  under  which  an  executor 
or  administrator  may  dispose  of  the  real  estate  of  the  de- 
cedent, the  manner  of  doing  so,  and  indicate  the  proper  dis- 
tribution of  the  proceeds  arising  from  such  sales. 

§  285.  Sale  of  Land  Under  Power  Contained  in  a  Will. 
— In  general,  an  administrator  has  no  interest  in  the  real 
estate  of  the  deceased,  and  has  no  power  to  deal  with  it  be- 
yond that  expressly  conferred  upon  him  by  statute.-  And 
in  most  instances,  the  power  thus  conferred  is  restricted  to 
leases  or  sales  of  land  for  the  payment  of  the  debts.  The  au- 
thority of  an  executor  is  no  greater,  unless  it  is  conferred 
by  the  will.  If  the  will  devises  the  real  estate  to  him,  he 
may  enter  and  take  the  profits  in  his  trust  capacity;  but,  if 
the  power  given  by  the  will  is  that  of  selling  merely,  he  has 
no  right  to  the  possession,  except  for  the  purpose  of  sale, 
and  until  he  does  sell  the  heir  will  have  the  profits. 

lAnte,  §§  170-174. 

2  Gamble  v.  Gibson,  59  Mo.  58.5;  Grant  v.  Hathaway,  215  Mo.  141, 
114  S.  W.  609,  15  Ann.  Cas.  567;  MeQuitty  v.  Wilhite,  218  Mo.  586, 
117  S.  W.  730,  131  Am.  St.  Rep.  561 ;  Aubuchon  v.  Ivory,  23  IMo.  loc. 
c4t.  99 ;  Sturgeon  v.  Schaumburg,  40  Mo.  loc.  cit.  485,  93  Am.  Dec. 
311. 


§  285  DUTIES  or  executors,  etc.  293 

If  the  power  of  sale  given  to  the  executor  by  the  terms 
of  the  will  is  absolute  for  all  purposes,  it  determines  the 
course  of  devolution,  not  giving  to  it  the  character,  either 
land  or  personalty,  as  the  testator  left  it,  but  the  character 
into  which  the  testator  directed  it  to  be  converted.^  Such 
conversion  operates  immediately  upon  the  death  of  the  tes- 
tator, but  springs  only  from  a  clear  expression  of  the  testa- 
tor's intention  that  the  property  should  be  so  treated  upon 
his  demise.  The  mere  statement  that  it  was  his  wish  and 
desire  that  his  property  should  be  sold  by  his  executor 
would  work  a  conversion  of  the  land  to  personalty  only 
from  the  date  of  the  execution  of  the  power;  that  is,  the 
date  of  sale  of  the  real  estate  by  the  executor.*  In  the  in- 
terim the  title  would  vest  in  the  heirs  and  they  would  be 
entitled  to  the  rents  and  profits  arising  therefrom.  If  the 
testator  expressly  directs  the  sale  to  take  place  at  a  particu- 
lar future  time,  the  conversion  of  realty  into  personalty  is 
only  effected  as  of  the  time  sale  should  be  made  under  the 
implied  power  contained  in  the  will. 

The  testator  cannot  alter  the  legal  character  of  real  prop- 
erty, by  directing,  either  impliedly  or  expressly,  that  it  shall 
be  considered  a  part  of  his  personal  estate,  but  he  may  di- 
rect an  absolute  conversion  of  real  estate  into  money  for  all 
purposes,  or  what  is  called  a  conversion  out  and  out,  and 
in  such  case,  the  avails  of  the  land  go,  to  all  intents,  in  the 
same  directions  as  if  it  had  never  been  land.  It  is  an  estab- 
lished rule  in  equity,  that  money  directed  to  be  invested  in 
land  is  treated  as  land,  and  land  directed  to  be  sold  and 
turned  into  money  is  regarded  as  money.  So  that  under 
some  circumstances,  land  is  regarded  as  money,  and  money 
as  land,  upon  the  principle  that  what  is  agreed  to  be  done, 
or  directed  to  be  done,  is  in  equity  considered  as  actually 
done.^ 

But  where  those  entitled  both  by  law  and  equity  to  the 
funds  that  would  arise  from  the  sale  of  real  estate  under  the 
direction  contained  in  a  will  convey  all  their  interest  to  a 
single  individual,  such  action  constitutes  an  election  on  their 

3  Compton  V.  McMahau,  19  Mo.  App.  -19S ;  Williams  v.  Lobhaii.  206 
Mo.  309.  104  S.  W.  58. 

4  Morris  v.  Stephenson,  128  Mo.  App.  338,  107  S.  W.  449:  Wil- 
Uaras  v.  Williams,  145  Mo.  App.  382,  129  S.  W.  454;  Giveus  v.  Ott, 
222  Mo.  395.  121  S.  W.  23. 

5  Compton  V.  McMalian,  19  Mo.  App.  498 ;  Givens  v.  Ott,  222  Mo. 
395,  121  S.  W.  23. 


294  DUTIES   OF   EXECUTORS,  ETC.  §  286 

part  which  amounts  to  a  reconversion,  so  that,  under  the 
doctrine  of  equitable  conversion  and  reconversion  of  the 
personalty  to  real  estate,  such  grantee  may  take  the  real  es- 
tate itself.  Thus,  a  power  to  sell  for  purposes  of  distribu- 
tion expires  when  the  heirs  have,  by  deed,  vested  the  whole 
title  in  one  person.^ 

§  286.  Same— By  Whom  Sale  Should  Be  Made.— If  the 
testator  directs  his  real  estate  to  be  sold  for  certain  purpos- 
es, without  declaring  by  whom  the  sale  shall  be  made,  and 
the  proceeds  are  distributable  by  the  executor  in  the  pay- 
ment of  debts  or  legacies,  etc.,  he  has  the  power  to  make 
the  sale  by  implication.  And,  of  course,  where  the  will  ex- 
pressly directed  the  executor  to  sell,  he  may  do  so.  And  in 
general,  where  two  or  more  trustees  are  appointed  by  will 
to  execute  a  trust  and  one  or  more  of  them  die,  the  survivor 
may  execute  the  trust  unless  the  will  express  a  contrary  in- 
tention, and  if  no  provision  be  made  in  the  will  for  the  fail- 
ure or  refusal  of  the  trustees  to  act,  a  court  of  equity  may 
appoint  a  trustee  to  execute  such  trust  upon  a  proper  pro- 
ceeding had  for  that  purpose." 

This  is  true  only  in  those  cases  where  there  is  an  express 
and  absolute  direction  in  the  will  to  the  executor  to  sell  the 
real  estate  and  distribute  the  proceeds.  But  where  the  will 
confers  merely  a  conditional  power  to  sell,  the  trust  is  per- 
sonal. If  the  donee  of  the  power,  where  he  acted  in  the 
cliaracter  of  an  executor  or  as  a  trustee,  has  had  a  reasona- 
ble time  in  which  to  execute  the  trust,  a  court  of  equity  has 
the  power  to  terminate  the  trust  and  distribute  the  estate." 

In  Missouri,  the  sale  and  conveyance  of  real  estate  under 
a  will  must  be  made  by  the  acting  executor,  or  administra- 
tor with  the  will  annexed,  if  no  other  person  be  appointed 
by  the  will  for  that  purpose,  or  if  such  person  fail  or  refuse 
to  perform  the  trust. ° 

6  Williams  v.  Lobban,  206  Mo.  399,  104  S.  W.  58;  Biggs  v.  Peacock. 
L.  R.  22  Chan.  Dec.  284. 

7  Rev.  St.  1909,  §  8064 ;  Brandon  v.  Carter,  119  Mo.  572,  24  S.  W. 
10.35,  41  Am.  St.  Rep.  673;  Hitch  v.  Stonebral^er,  125  Mo.  12S,  28 
S.  W.  443. 

8  Donaldson  v.  Allen,  182  Mo.  026,  81  S.  W.  1151;  Williams  v. 
Lobban,  200  Mo.  399,  104  S.  W.  58. 

•jRev.  St.  1909,  §  141;  Donaldson  v.  Allen.  182  Mo.  626,  81  S.  W. 
11.51 ;  Williams  v.  Lobban,  206  Mo.  .399,  104  S.  W.  58 ;  Emmons  v. 
Gordon,  110  Mo.  490,  41  S.  W.  998,  02  Am.  St.  Rep.  734;    Garesche 


§  287  DUTIES   OF   EXECUTORS,  ETC.  295 

If  an  executor  or  administrator  is  authorized,  by  will  or 
devise,  to  sell  real  estate,  it  will  not  be  necessary  to  obtain 
an  order  from  the  court  to  authorize  him  to  act  in  the  prem- 
ises. 

A  will  with  power  of  sale  vests  the  title  in  the  executor 
at  the  time  of  the  testator's  death,  and  a  deed  by  the  execu- 
tor vests  a  good  title,  though  made  before  probate  of  the 
will,  provided  the  will  is  afterwards  probated. ^°  But  wheth- 
er the  power  is  conferred  by  the  will  by  implication  is  many 
times  difficult  to  determine.  A  clause  in  a  will  to  the  eiTect 
that  "any  just  debts  are  first  to  be  paid;"  ^^  or  which  gives 
a  widow  a  life  estate  and  "what  remains  to  be  equally  di- 
\ided,  etc. ;"  or  which  authorizes  her  "to  pay  the  debts  and 
raise  the  children  as  she  may  think  best,"  ^-  or  which  clothes 
the  executor  with  discretionary  power  to  settle  the  estate 
as  he  thinks  best  for  the  interests  of  the  testator's  heirs, 
does  not  carry  an  implied  power  to  sell  lands  of  deceased. 

The  power  of  sale  given  to  the  executor  cannot  become 
dominant  to  the  title  of  the  heirs  at  law  unless  such  heirs 
at  law  have  been  disinherited  by  an  express  devise  or  a  nec- 
essary implication.  Such  implication  must  amount  to  a 
clear  and  unequivocal  expression  of  the  testator's  intention 
to  disinherit  the  heir.^^ 

§  287.  Same — Form  of  Deed. — In  selling  real  estate  un- 
der a  power  contained  in  a  will,  the  executor  or  administra- 
tor must  follow  the  directions  of  the  will,  or  his  acts  will 
have  no  validity.  If  the  power  to  sell  is  given  to  two  or 
more,  all  should  join  in  the  sale,  unless  provision  is  made 
for  a  less  number  to  perform  the  act.  But  where  the  exec- 
utors or  any  of  them  refuse  to  act,  or  their  letters  are  revok- 
ed and  subsequently  letters  with  the  will  annexed  are 
granted  to  others,  the  power  to  sell  may  be  executed  by  the 
acting  executor  or  administrator,  and  he  may  do  whatever 
the  will  authorizes  the  executors  to  do.^* 

V.  T>evering  Inv.  Co.,   IIG  Mo.  4.36,  48  S.  W.  653,  46  L.  R.  A.  232; 
In  re  Rickenbaugh,  42  Mo.  App.  328. 

10  Wilsou  V.  Wilson,  .^4  Mo.  213. 

11  Owen  V.  Ellis,  64  Mo.  77;    In  re  Rickenbaugh,  42  Mo.  App.  328. 

12  Foote  V.  Sanders.  72  Mo.  616. 

13  Williams  v.  Lobban,  20*5  Mo.  399.  104  S.  W.  58. 

i-«  Rev.  St.  1900.  §  141;  Pliillips  v.  Stewart,  59  Mo.  491;  Gaines  v. 
Fender.  82  INIo.  497;  Grace  v,  Terry,  197  Mo.  550,  95  S.  W.  875,  7 
Ann.  Cas.  948. 


296  DUTIES   OF   EXECUTORS,  ETC.  §  28T 

The  following  form  may  be  useful  as  a  general  guide  in 
drafting  deeds  for  the  conveyance  of  land  by  an  executor  or 
administrator  under  a  power  of  sale  in  the  will : 

Executor's  Deed 

This  deed,  made  the day  of ,  19 — ,  between  J.  D.  ex- 
ecutor of  the  last  will  of  R.  R.,  late  of county,  state  of  , 

dec'd,  of  the  one  part,  and  J.  M.  of  the  county  aforesaid  of  the 
other  part:  witnesseth  that,  whereas,  the  said  R.  R.  died  seized  in 
his  own  right,  in  fee  simple,  of  a  certain  tract  of  land  situated  in 
the  county  of  and  state  of  ,  described  as  follows  (de- 
scribe land).  And  whereas  by  the  last  will  and  testament  of  the 
said  R,  R.  dec'd,  among  other  things,  he  ordered  and  directed  his 
executors  thereinafter  named  to  sell  and  convey  the  said  tract  of 
land  for  the  best  price  that  could  be  had  for  the  same;  and  ap- 
pointed said  J.  D.  to  be  the  executor  of  his  said  will,  as  in  and  by 
said  will  now  remaining  on  record  in  the  office  of  the  probate  court 

of  said  county  of  ,   more  fully  appears.     And  whereas,   said 

will  was  on  the day  of ,  19 — ,  duly  admitted  to  probate, 

and  letters  testamentary  thereon  in  due  form  of  law  granted  to  the 

said  J.  D.     Now,  therefore,  in  consideration  of  the  sum  of  • 

dollars,  in  hand  paid  by  the  said  J.  M.,  the  receipt  of  which  is  here- 
by acknowledged,  the  said  J.  D.  as  executor  doth  by  these  presents 
grant,  bargain,  sell,  convey,  and  confirm  unto  the  said  J.  M.,  his 
heirs  and  assigns  forever,  the  above  described  tract  of  land,  together 
with  all  the  rights,  privileges  and  appurtenances  thereunto  belonging, 
and  all  the  estate,  right,  title  and  interest  of  the  said  R.  R.  in  his 
lifetime,  in  and  to  the  same:  To  have  and  to  hold  the  lands  hereby 
conveyed  with  all  the  appurtenances,  to  the  only  proper  use,  benefit 
and  behoof  of  the  said  J.  M.,  his  heirs  and  assigns,  forever. 

In  witness  whereof,  etc.  J.  D,     [Seal.] 

Executor  of  R.  R.,  dec'd. 

Add  acknowledgment. 

§  288.  Same — Sale  for  a  Specific  Purpose. — An  executor 
may  be  empowered  by  the  will  to  sell  lands  for  the  payment 
of  debts  only,  and  then  they  are  assets  for  that  purpose 
merely.  So  the  direction  may  be  to  sell  for  the  payment  of 
legacies,  and  not  of  debts,  then  the  sale  will  be  restricted  to 
the  payment  of  legacies  if  there  is  a  sufficiency  of  personal 
assets  to  discharge  the  debts.  Lands  are  not  in  their  own 
nature  assets,  but  may  be  made  so  by  the  will  of  the  testa- 
tor, hence  they  cannot  be  assets  to  a  greater  extent  than  he 
has  thought  fit  to  direct. ^^  And  whether  the  sale  be  for  the 
payment  of  debts  or  for  any  other  purpose  expressed  in  the 

15  Hanson  v.  Hanson,  70  Me,  508;  In  re  Branch's  Estate,  123  Mo. 
App.  573,  100  S.  W.  51G. 


I  290  DUTIES   OF   EXECUTORS,  ETC.  297 

will,  the  proceeds  of  the  sale  must  be  applied  according  to 
the  directions  of  the  will. 

§  289.  Contract  for  the  Purchase  of  Land  by  the  Dece- 
dent.— It  very  often  results  from  the  practice  of  selling  land 
by  title  bond,  that  one  or  the  other  of  the  parties  to  the  con- 
tract dies  before  it  is  completed,  and  it  devolves  upon  his 
executor  or  administrator,  in  the  settlement  of  the  estate, 
to  dispose  of  the  contract  or  specifically  execute  it.  In  rela- 
tion to  such  contracts  the  statute  provides  that  if  any  per- 
son die,  having  purchased  real  estate,  and  shall  not  have 
completed  the  payment,  nor  devised  such  estate,  nor  pro- 
vided for  the  payment  by  will,  and  the  completion  of  such 
payment  would  be  beneficial  to  the  estate  and  not  injurious 
to  creditors,  the  executor  or  administrator,  by  order  of  the 
court  may  complete  such  payment  out  of  the  assets  in  his 
hands,  and  such  estate  (lands)  shall  be  disposed  of  as  other 
real  estate.^*^  In  such  a  case  the  seller  should  present  his 
demand  for  the  purchase  money  and  have  it  allowed  against 
the  estate  and  then  the  executor  or  administrator  may,  by 
order  of  the  court,  use  the  assets  to  pay  it,  and  complete  the 
purchase ;  but  before  the  court  can  make  the  order  it  must 
examine  into  the  condition  of  the  estate,  and  determine  ju- 
diciallv  whether  it  will  be  beneficial  to  the  estate  and  not 
injurious  to  creditors,  for  if  the  court  cannot  adjudge  that  it 
would  be  beneficial  to  the  estate  and  not  injurious  to  credi- 
tors, the  order  for  the  payment  of  the  purchase  money 
should  not  be  made.^^ 

§  290.  Same— Petition— Order  of  Sale.— If  the  court  be- 
lieve that  after  the  payment  of  debts  there  will  not  be  sufii- 
cient  assets  to  pay  for  such  real  estate,  it  may  order  the  ex- 
ecutor or  administrator  to  sell  all  the  right,  title  and  interest 
of  the  deceased  therein.  Or,  if  the  real  estate  has  been  pur- 
chased from  individuals,  the  court  may,  if  it  believes  it 
would  be  advantageous  to  the  estate,  order  the  same  to  be 
relinquished  to  such  individual,  on  the  most  advantageous 
terms  that  can  be  agreed  upon.  And  if  the  real  estate  has 
been  purchased  by  any  officer  authorized  by  law  to  sell 
school  lands,  the  court  may,  in  its  discretion,  order  the  same 
to  be  relinquished ;  and  in  such  case  the  officer  is  authoriz- 
ed to  accept  such  relinquishment  and  surrender  the  obliga- 

16  Rev.  St.  1909.  §  142. 

17  Lake  v.  Meier,  42  Mo.  389:  Chapman  v.  :\IeiTitt.  4.'?  Mo.  App. 
179 ;    Harney  v.  Donohoe,  97  Mo.  141.  10  S.  W.  191. 


298  DUTIES   OF   EXECUTORS,  ETC.  §  290 

tion  of  the  deceased.^*  A  petition  and  appraisement  are  not 
required  in  such  a  case.^^  But  a  petition  representing  the 
facts,  as  a  basis  for  the  action  of  the  court,  could  do  no 
harm  and  might  be  helpful.-"  The  probate  court  could  not 
allow  the  claim  for  purchase  money  and  enforce  a  vendor's 
lien  by  ordering  a  sale  of  the  land.-^  Such  a  case  may  be 
disposed  of  in  either  of  three  ways  in  the  probate  court:  1. 
The  claim  may  be  allowed  and  assigned  to  its  proper  class, 
and  be  paid  out  of  the  assets  of  the  estate.  2.  If  the  assets 
are  insufficient  the  court  may  order  the  right,  title,  and  in- 
terest of  the  deceased  therein  to  be  sold.  3.  If  it  would,  in 
the  opinion  of  the  court,  be  advantageous  to  the  estate,  the 
court  may  order  it  to  be  relinquished  to  the  seller  on  the 
most  favorable  terms,  or  if  it  be  school  land  the  court  may 
order  it  to  be  relinquished,  etc.--  In  all  these  cases  a  judi- 
cial determination  of  the  facts  is  necessary  before  the  prop- 
er order  can  be  made  by  the  court.  The  following  forms 
may  be  useful : 

Application  to  Sell  the  Interest  of  Decedent 

State  of  Missouri, )  t     ^.^      n    i    4.     n>      4-     ^  rt^,,^*-,, 

^       ^     '  J-ss.  In  the  Probate  Court  of  County. 

County,    j 

In  the  matter  of  the  Estate  of    1  „  ....       .        ,,     . 
,,    _,      ,  -,  '  Petition  to  sell,  etc. 

11.  R.,  deceased.  \ 

J.  D.,  administrator  of  the  estate  of  R.  R.,  deceased,  states  that 

said  R.  R.  in  his  lifetime,  to-wit:   on  the day  of ,  19—, 

purchased  of  E.  F.  the  following  described  real  estate,   viz.:    (here 

describe  the  land),   for  tlie  sum   of  dollars :    that  lie  paid 

dollars  down,  and  gave  his  promissory  note  for  the  balance 

of  said  sum,  payable  in months,  with per  cent  interest 

thereon  from  date,  and  received  from  said  E.  F.  his  bond  for  a  deed 
of  conveyance  with  full  covenants  of  seizin  and  warranty  of  said 
land  to  the  said  R.  R.  on  payment  of  said  purchase  money  (state 
the  terms  of  contract) ;  that  said  note  and  the  interest  thereon  are 
due  and  unpaid ;  that  after  the  payment  of  the  debts  there  will  not 
be  sufficient  assets  belonging  to  the  estate  to  pay  for  said  real  es- 
tate, and  he  believes  it  will  be  for  the  best  interest  of  the  estate  to 
sell  all  the  right,  title  and  interest  of  the  said  R.  R.  in  said  land, 
subject  to  the  payment  of  said  note.  He  therefore  asks  an  order  for 
the  sale  of  the  same.  J.  D., 

Administrator. 

18  Rev.  St.  1909,  §§  14.3-145. 

19  Valle  V.  Fleming,  19  Mo.  454,  61  Am.  Dec.  566;    Garrett  v.  Bick- 
nell,  64  Mo.  404. 

2  0  Hand  v.  Motter,  73  Mo.  457. 
21  Ross  V.  Julian,  70  Mo.  209. 

2  2  Ross  V.   Julian,  70  Mo.  209;    Garrett  v.  Bicknell,  64  Mo.  404; 
Hand  v.  Motter,  73  Mo.  457 ;    Gantt  v.  Mechin,  30  Mo.  App.  532. 


§  291  DUTIES   OF   EXECUTORS,  ETC.  299 

If  an  order  for  the  relinquishment  of  the  land  to  the  seller 
is  desired,  change  the  latter  part  of  the  petition  so  as  to  ef- 
fect that  object. 

Order  of  Sale  for  Decedent's  Interest 

In  the  matter  of  the  Estate  of  U.  R.,  doccased.  1    ^^    ,        ,  r.  i 
T    T^     .  T    .   .  .     .  V  Order  of  Sale. 

J.  D.,  Adnnnistrator.  J 

Now  comes  J.  D.,  administrator  of  the  estate  of  K.  K.,  deceased, 

and  presents  to  the  court  his  petition,  showing  tliat  said  R.  R.  in 

liis  lifetime,  to-wit,  on  the  day  of  ,  10 — ,  purchased  of 

E.  F.  the  following  described  real  estate,  to-wit,   (here  describe  it), 

for  the  sum  of dollars,  that  he  paid  dollars  down  and 

gave  his  promissory   note  for  the  balance  of  said  sum,  payable  in 

months,  with  oiglit  per  cent,  interest  from  date,  and  received 

from  said  E.  F.  his  bond  for  a  deed  of  conveyance  with  full  cove- 
nants of  seizin  and  warranty  of  the  same  to  the  said  R.  R.,  upon  tlie 
payment  of  the  purchase  money  (state  tlie  terms  as  set  out  in  the 
petition) ;     that   said    note   and    the   interest   thereon,   amounting  to 

dollars  are  still  due  and  unpaid,  and  that  after  the  payment 

of  the  debts  there  will  not  be  sufficient  assets  belonging  to  said  es- 
tate to  pay  for  said  land.  And  the  court  having  examined  into  the 
affairs  and  condition  of  said  estate,  dotli  tind  that  the  facts  set 
foi'th  above  ai'e  true,  and  that  after  the  payment  of  the  debts  there 
will  not  be  sufficient  assets  to  pay  for  said  land ;  and  it  appearing 
to  the  court  that  It  will  be  for  the  best  interest  of  said  estate  to 
sell  the  right,  title  and  interest  of  the  said  R.  R.  in  and  to  said  land, 
it  is  therefore  ordered  that  said  administrator  do  sell  all  the  right, 
title  and  interest  of  the  said  R.  R.  in  said  real  estate  at  private  sale 
for  not  less  than  three-fourths  of  its  ap])raised  value,  for  cash  in 
hand  (state  the  terms  of  sale),  and  that  he  report  his  proceedings 
herein  at  the  next  term  of  this  court. 

The  sale  may  be  either  public  or  private,  as  the  court  may- 
order,  and  if  the  order  be  silent  on  the  subject,  then  as  the 
administrator  may  choose.-^ 

§  291.  Same — Report  and  Confirmation  of  Sale. — The 
sale  should  be  reported  to  and  confirmed  by  the  court,  and 
the  administrator  should  be  ordered  to  execute  a  release  or 
assignment  of  the  interest  of  the  deceased  in  the  land  or 
contract  to  the  purchaser.  If  the  court  should  order  the 
contract  rescinded,  the  terms  of  rescission,  agreed  upon  by 
the  administrator  and  the  seller,  should  be  reported  to  the 
court,  for  its  approval,  and  a  deed  of  release  or  relinquish- 
ment should  be  ordered  by  the  court  and  executed  by  the 
administrator,  and  the  obligations  of  the  deceased  should 
be  delivered  up  and  canceled.     If  the  deceased  left  a  will 

2  3  Hand  v.  Motter,  73  Mo.  457. 


300  DUTIES    OF    EXECUTORS,  ETC.  §  291 

by  which  he  devised  the  real  estate,  or  made  provision  for 
the  payment  of  the  purchase  money,  the  directions  of  the 
will  should  be  followed  as  far  as  possible,  and  if  the  land 
be  devised  the  holder  of  the  claims  for  purchase  money  may 
enforce  a  vendor's  lien  by  suit  in  the  circuit  court,  in  which 
the  devisee  and  administrator  should  be  parties ;  and  filing' 
the  claim  and  having  it  allowed  against  the  estate  does  not 
prevent  this  remedy.^* 

The  deed  of  conveyance  or  relinquishment  made  by  the 
executor  or  administrator  under  this  proceeding  will  pass 
all  right,  title  and  interest  the  deceased  had  in  the  land  at 
the  time  of  his  death. ^^ 

§  292.  Contract  for  Sale  of  Land  by  Decedent,  How  En- 
forced.— When  the  decedent  has  entered  into  a  contract  in 
writing,  for  the  conveyance  of  land,  and  has  not  executed 
the  same  in  his  lifetime,  nor  given  power  by  will  to  execute 
the  same,  the  other  party  wishing  a  specific  execution  of 
the  contract  may  present  a  petition  to  the  court  setting 
forth  the  facts,  and  praying  that  an  order  may  be  made  that 
the  executor  or  administrator  execute  such  contract  spe- 
cifically by  executing  to  him  a  deed  for  the  same.-° 

The  section  of  the  statutes  which  grants  this  right  has 
been  held  not  to  authorize  a  suit  in  equity  against  an  ad- 
ministrator to  enforce  an  oral  contract  to  convey  real  es- 
tate." 

The  petitioner  must  annex  to  his  petition  an  affidavit  to 
the  truth  thereof,  and  stating  that  no  part  of  such  contract 
has  been  satisfied,  except  as  stated  in  the  petition.  Unless 
the  affidavit  required  be  made  the  court  would  have  no 
jurisdiction  to  make  the  order.^^  The  petition  may  be  as 
follows: 

Petition  for  Deed 

State  of  Missouri,  County  of  .       "1 

E.  F.  I  In   the   Probate   Court   of 

vs.  I       County. 

J.  D.,  administrator  of  R.  R.,  deceased.] 

Tlie  petition  of  E.  F.  shows  to  the  court  that  R.  R.,  late  of 

county,  deceased,  on  the  day  of  ,  19 — ,  made  a  con- 

24  Edmonson  v.  Phillips,  73  Mo.  57. 

25  Rev.  St.  1909,  §  140 :   Gantt  v.  Mechin,  .30  Mo.  App.  532. 

26  Rev.  St.  1909,  §  177 ;   Rose  v.  Perkins,  98  Mo.  253,  11  S.  W.  G22. 
2  7  McQuitty  V.  Wilhite,  218  Mo.  58G,  117  S.  W.  730,  131  Am.   St. 

Rep.  5G1. 

i: 8  Baldwin  v.  Whitcomb,  71  Mo.  651;  Benne  v.  Schnecko,  100  Mo. 
250,  13  S.  W.  82 ;    Snell  v.  Harrison,  104  Mo.  158,  16  S.  W.  152. 


§  293  DUTIES   OF   EXECUTORS,  ETC.  301 

tract  in  writing  for  the  conveyanoe  to  tlie  said  E.  F.  of  the  follow- 
ing real  estate,  to-wit:    (describe  it)  for  the  sum  of  dollars, 

to  be  paid  by  said  E.  F.  to  the  said  U.  U.  as  follows:  (here  state 
the  terms  of  payment).  That  said  K.  K.  did  not  execute  said  convey- 
ance in  his  lifetime,  nor  give  power  by  will  or  otherwise  to  any 
other  person  to  execute  the  same;  that  said  E.  F.  has  complied 
with  the  terms  of  said  contract  on  his  part  by  paying  to  said  R.  R. 
the  full  amount  of  said  purchase  money  (or  by  paying  to  the  de- 
ceased the  sum  of dollars,  and  the  balance  of  said  purchase 

money  to  the  said  J.  D.,  administrator  of  said  R.  R..  deceased,  or  is 
ready  and  willing  and  now  offers  to  pay  the  balance  due).  (State  the 
facts  showing  a  compliance  or  readiness  to  comply  with  the  con- 
tract.) 

lie  therefore  prays  that  the  court  will  order  that  J.  D.,  adminis- 
trator of  the  estate  of  R.  R.,  deceased,  execute  said  contract  specifi- 
cally, by  executing  to  him  a  deed  for  said  land.  E.  F. 

e'.  F.,  the  above  named  petitioner,  being  sworn  says  that  the  facts 
set  forth  in  the  above  petition  are  true,  and  that  no  part  of  said 
contract  has  been  satisfied,  except  as  stated  in  said  petition. 

E.  F. 

Subscribed  and  sworn  to,  etc. 

A  notice  of  the  application  and  a  copy  of  the  petition  must 
be  served  on  the  executor  or  administrator.-"  Also  on  the 
heirs  or  devisees  residing  in  or  who  may  be  served  in  the 
county  twenty  days  before  the  first  day  of  the  term  at 
which  it  is  to  be  made. 

Notice  to  Administrator 

State  of  Missouri,     ) 

County  of  .  j 

To  J.  D.,  administrator  of  the  estate  of  R.  R.,  deceased,  and  R.  R. 
and  A.  B..  heirs  or  devisees  of  said  deceased: 

You  are  hereby  notified  that  on  the day  of  the  next  term 

of  the  probate  court  of  this  county,  to  be  held  at on  the 

day  of ,  19 — ,  or  as  soon  thereafter,  during  the  session  of  said 

court  as  the  matter  can  be  hoard,  I  shall  apply  to  said  court  for  an 
order  upon  you,  J.  D.,  as  administrator,  to  make  and  execute  to  me 
a  deed  for  the  land  described  in  the  petition,  a  copy  of  which  is 
hereto  annexed,  in  compliance  with  a  contract  made  between  the 
said  R.  R.,  deceased,  and  myself,  as  set  forth  in  said  petition. 

E.  F. 

§  293.  Same — Order  of  Court  and  Deed. — If  the  court, 
after  hearing  all  parties,  believe  that  specific  execution  of 
the  contract  ought  to  be  made,  it  will  make  an  order  that 
the  executor  or  administrator  execute  the  contract  spe- 
cifically, saving  to  infants,  married  women,  persons  of  un- 

2  0  Rev.  St.  1909,  §  179. 


302  DUTIES   OF   EXECUTORS,  ETC.  §  293 

sound  mind,  and  persons  absent  from  the  United  States, 
five  years  after  their  disabilities  are  removed,  to  appear 
and  file  their  petition  in  the  circuit  court,  to  set  aside  such 
order  for  fraud  or  otherwise.^" 

When  the  order  is  made  the  executor  or  administrator 
must  execute  and  deliver  to  the  petitioner  a  deed,  and  ac- 
knowledge it  in  open  court,  conveying  the  estate  according 
to  the  order  and  expressing  therein,  the  saving  of  the  rights 
above  named,  according  to  the  order,  and  stating  the  date 
of  the  order  and  the  court  at  which  it  was  made.  The  deed 
so  executed  will  be  as  effectual  as  if  it  had  been  made  by  the 
deceased. ^^ 

§  294.     Case  to  Be  Transferred  to  Circuit  Court. — The 

party  entitled  to  such  specific  performance  of  the  contract 
may  bring  his  petition  in  the  circuit  court  of  the  county,  in 
the  first  instance;  and  if  it  be  brought  in  the  probate  court, 
the  executor,  administrator,  widow,  or  any  heir  or  devisee 
of  the  estate,  may  appear  and  allege  that  he  is  unwilling 
to  have  the  same  tried  in  that  court,  and  the  court  will  or- 
der the  case  to  be  certified  to  the  circuit  court.  If  in  any 
such  case  it  appear  to  the  circuit  court  that  specific  execu- 
tion of  the  contract  ought  to  be  made,  it  will  give  judgment 
for  that  purpose,  in  the  same  manner  and  with  the  same  res- 
ervations as  required  in  case  of  orders  by  the  probate 
court.^^ 

Order  of  Court 

'■      ■  Order  for  specific  per- 

,    -^    ■        .   .  .      .         -  T,    ,1      -,  1      Iformauce  of  coutract  for 

J.  D.,  administrator  of  R.  K.,  deceased.  ,       ^  ,      , 

i^T^         ,»T.v,-  11-  faille  of  land, 

and  R.  R.  and  A.  B.,  heirs  and  devisees.  J 

Now  comes  E.  F.,  and  files  his  petition,  verified  by  aflidavit,  show- 
ing that  the  said  R.  R.,  deceased,  entered  into  a  contract  in  writing 

on  the  day  of  ,  19 — ,  for  the  conveyance  to  the  said 

E.  F.  of  the  following  real  estate,  to-wit,  (here  describe  it),  and  did 
not  execute  the  same  in  his  lifetime,  nor  give  power  by  will  or  oth- 
er mse  to  any  other  person  to  execute  the  same,  and  that  he.  the 
said  E.  F.,  has  complied  with  the  terms  of  said  contract  on  his  part 
(state  the  facts),  and  praying  the  court  to  order  the  executor  or  ad- 
uiiiiistrator  to  specifically  execute  such  contract  by  executing  to  him 
a  deed  for  the  same.     It  api)earing  that  notice  of  this  application, 

3  0  Rev.  St.  1909,  §  ISO;  Harris  v.  Ross,  86  Mo.  89,  56  Am.  Rep. 
411;  Lacy  v.  Pixler,  120  INIo.  38.3,  25  S.  W.  206;  Ferguson  v.  Bell's 
Adm'r,  17  Mo.  347. 

31  Rev.  St.  1909,  §§  181,  182;   Fellows  v.  Wise,  49  Mo.  350. 

8  2  Rev.  St.  1909,  §§  183,  184. 


§  294  DUTIES   OF   EXECUTORS,  ETC.  303 

and  a  copy  of  said  petition  have  been  served  on  .7.  D.,  administrator 
of  the  estate  of  said  It.  K.,  deceased,  and  on  K.  It.  and  A.  B..  heirs 
and  devisees,  more  than  twenty  days  before  the  first  day  of  the 
present  term  of  this  court,  and  the  court  liavin^  heard  all  parties, 
believe  that  specific  execiition  of  said  contract  ou^ht  to  be  made;  it 
is  therefore  ordered  by  the  court  that  said  administrator  execute 
said  contract  specifically,  by  executing  to  said  E.  F.  a  deed  for  said 
land,  saving  to  infants,  married  women,  per.sons  of  unsound  mind, 
and  persons  ab.sent  from  the  T'nited  States,  the  term  of  five  years 
after  their  disabilities  are  removed,  to  appear  and  file  tlieir  petition 
in  the  circuit  court  to  set  aside  this  order  for  fraud  or  otherwise. 

Deed  of  Administrator 

This  Deed  Witnesseth:    That,  whereas,  the  court  of 

county,  state  of  Missouri,  on  the  day  of  ,  19 — ,  at  its 

term,   19 — ,  upon  the  petition  of  E.  F.  showing  that  R.  R., 

deceased,  entered  into  a  contract  in  writing  on  the  day  of 

,  19 — .  for  the  conveyance  of  the  real  estate  herein  described, 

and  failed  to  execute  tlie  same  in  liis  lifetime,  or  to  empower  by 
will  or  otherwise  any  other  person  to  execute  tlie  same,  and  praying 
an  order  for  the  specific  execution  of  said  contract  by  the  adminis- 
trator of  the  estate  of  said  R.  R.,  deceased,  did  order  and  direct  the 
undersigned  administrator  of  tlie  estate  of  said  J.  D.  to  make  to  the 
said  E.  F.  a  deed  for  the  land  mentioned  in  his  petition  and  herein 
described,  in  due  form,  and  in  accordance  with  the  statute  in  such 
cases  provided;  and  whereas,  tlie  said  E.  F.  has  complied  with  the 
terms  of  said  contract  on  liis  part,  and  with  the  order  of  the  court ; 
now,  therefore,  I,  J.  D..  administrator  of  the  estate  of  said  R.  R.. 
deceased,  in  consideration  of  the  premises,  and  in  compliance  with 
the  aforesaid  order  of  the  court,  do  by  these  presents  grant,  bargain, 
sell  and  convey  unto  the  said  E.  F.  as  fully  and  amply  as  I  am  by 
law  empowered  as  such  administrator  to  do.  the  following  real  es- 
tate, to-wit.  (here  describe  it). 

To  liave  and  hold  the  said  real  estate  with  all  its  privileges  and 
apimrtenances  unto  the  said  E.  F..  his  heirs  and  assigns  forever, 
saving  to  infants,  married  women,  persons  of  unsound  mind,  and 
persons  absent  from  the  I'nited  States  the  term  of  five  years  after 
tlieir  disabilities  are  removed,  to  appear  and  file  their  petition  in 
the  circuit  court  to  set  aside  said  order  for  fraud  or  otherwise. 

In  witness  whereof.  I   have  hereunto  set  my  hand  and  seal  this 

. day  of .  19—.  J.  D.,     [Seal.] 

Administrator  of  tlie  estate  of  R.  R.,  deceased. 

This  deed  must  he  acknowledijed  in  open  court. 

The  a(hninistrator  does  not  represent  the  heirs,  and  his 
ai)i)ointment  and  notice  to  him  does  not  bring  them  into 
court  to  answer  to  a  proceeding  to  which  they  are  not  par- 
ties ;  and  as  the  proceeding  is  not  in  rem.  The  parties  in 
whom  the  legal  title  is  vested,  viz.,  the  heirs,  should  be 
brought  in  as  parties  to  the  proceeding,  or  rather  the  pro- 


304  DUTIES   OF   EXECUTORS,  ETC.  §  295 

ceeding  should  be  in  a  court  of  equity  and  the  heirs  and  ad- 
ministrator should  be  brought  in  as  parties,  in  order  more 
certainly  to  divest  the  heirs  of  the  title. 

§  295.  Same — Proceedings  by  Executor,  Etc. — If  an  ex- 
ecutor or  administrator  holds  a  bond  or  other  instrument  of 
writing,  against  the  decedent  for  the  conveyance  of  any  real 
estate,  etc.,  he  may  proceed  against  his  co-administrator  or 
co-executor  in  the  manner  prescribed  for  other  persons; 
but  if  there  be  no  co-executor,  or  co-administrator,  he  must 
file  his  petition  and  the  court  will  appoint  some  suitable  per- 
son to  appear  and  manage  the  defense  on  the  part  of  those 
-interested,  who  shall  have  all  the  power  and  perform  the 
duties  of  executors  and  administrators  in  such  cases.^^ 

§  296.     Specific  Performance  of  Contract  Enforced,  Etc. 

— The  statutory  proceeding  against  an  administrator  or  ex- 
ecutor to  enforce  specific  performance  of  a  contract  by  the 
decedent  to  convey  lands,  is  permitted  only  where  the  con- 
tract is  in  writing.^*  Nor  can  it  be  made  available  on  ap- 
plication of  heirs  or  personal  representatives  of  deceased. 
^'The  other  party"  the  purchaser,  only,  is,  it  seems,  entitled 
to  this  remedy.  But  doubtless  it  often  happens  that  notes 
given  to  the  deceased  for  the  purchase  money  of  real  estate 
which  has  not  been  conveyed  by  him  in  his  lifetime,  fall 
into  the  hands' of  his  executor  or  administrator.  Such  notes 
are  assets  which  the  law  requires  the  executor  or  administra- 
tor to  collect.  If  the  payment  of  the  notes  and  the  execution 
of  the  conveyance  of  the  land  are  not  dependent  acts,  the 
executor  or  administrator  might  collect  the  money  without 
much  difficulty,  and  leave  the  purchaser  to  resort  to  the 
court  to  compel  the  execution  of  a  deed,  by  the  adminis- 
trator. But  where  the  payment  of  the  money  and  the  ex- 
ecution of  the  deed  are  mutual  and  dependent  acts,  where 
the  money  is  to  be  paid  upon  the  execution  of  a  conveyance 
of  the  land,  a  deed  must  be  tendered  before  an  action  can 
be  maintained  for  the  purchase  money.  The  executor,  un- 
less expressly  authorized  by  the  will,  has  no  power  to  con- 
vey his  testator's  land ;  nor  has  an  administrator,  unless, 
in  some  suitable  proceeding  he  is  authorized  by  the  proper 
court.  There  seems  not  to  be  any  mode  of  proceeding 
pointed  out  by  the  statute,  by  which  an  executor  or  admin- 

83  Rev.  St.  1909,  §  185. 

3  4  Scliulter's  Adra'r  v.  Bockwinkle's  Adm'r,  19  Mo.  647. 


g  297  DUTIES   OF    EXECUTORS,   ETC.  303 

istrator  can  complete  the  contract  on  the  part  of  the  de- 
ceased and  compel  the  payment  of  purchase  money.  The 
practice  in  such  a  case  would  seem  to  be  that  when  the 
notes  for  the  purchase  money  become  due,  the  executor  or 
administrator  should  file  his  petition  in  the  circuit  court 
against  the  person  to  whom  the  land  had  been  sold,  and 
the  heirs  of  the  deceased,  setting  forth  the  contract,  etc., 
and  praying  that  a  conveyance  should  be  ordered  by  the 
court,  and  for  a  judgment  for  the  unpaid  purchase  money, 
and  in  default  of  such  payment  a  sale  of  the  premises  to 
satisfy  the  debt. •''•'' 

In  answer  to  any  objection  that  might  be  urged  against 
the  sufficiency  of  a  title  obtained  in  this  way  where  a  war- 
ranty deed  is  called  for  by  the  terms  of  the  contract,  it 
may  be  suggested,  whether  every  vendee  does  not  neces- 
sarily contract  with  reference  to  the  contingency  of  the 
death  of  the  vendor  before  the  title  bond  or  contract  has 
matured.  And  as  to  a  conveyance,  whether  it  is  not  implied 
that  he  shall,  in  such  contingency,  accept  such  evidence 
of  the  title  as  the  law  authorizes  the  courts  to  make,  in  lieu 
of  that  which  the  act  of  God  has  rendered  it  impossible  to 
be  made.  This  has  been  the  tacit  understanding  of  the  pro- 
fession and  has  been  acted  upon  by  the  courts  for  years. 

§  297.  Contract  may  be  Canceled.— It  is  provided  by  stat- 
ute however,  that  if  the  deceased  has  entered  into  a  con- 
tract in  writing  for  the  conveyance  of  real  estate  and  the 
other  party  to  the  contract  fails  to  pay  for  the  same,  and 
the  price  cannot  be  collected  on  account  of  his  insolvency, 
the  executor  or  administrator  may,  by  order  and  approval  of 
the  court,  cancel  the  contract,  and  receive  a  deed  of  release 
from  the  purchaser,  and  have  credit  on  his  next  settlement 
for  the  amount  of  the  claim  arising  out  of  the  contract  can- 
celed.^" The  probate  court  may  authorize  the  adjustment 
of  the  matter  as  directed,  but  could  not  compel  it  against 
the  consent  of  either  party.  It  could  be  adjusted  in  a  court 
of  equity. 

35  Perry's  Adm'rs  v.  Roberts,  23  Mo.  221 ;  Leeper  v.  Lyon.  6S  Mo. 
216 ;    Sieiners  v.  Kleeburg,  56  Mo.  196 ;    Ross  v.  Julian,  70  Mo.  209. 

36  Rev.  St.  1909,  §  187. 

Kel.Mo.P.G.— 20 


)06  SALE   OF  KEAL   ESTATE,  ETC.  §  298 


CHAPTER  XXIV 

OF  THE   SALE   OF  REAL  ESTATE  FOR  PAYMENT  OF  DEBTS 
AND  LEGACIES 

§  29S.  Jurisdiction  of  probate  court. 

299.  Disposition  of  incumbered  real  estate. 

300.  Wliat  real  estate  may  be  sold  to  pay  debts. 

301.  The  petition  therefor  and  exhibits. 

302.  Same. 

303.  Notice  of  the  petition — Order  of  sale. 

304.  Hearing  of  the  petition— Order  of  sale. 

305.  Same — Necessity  of  an  order  of  sale. 

306.  Appraisement  of  real  estate. 

307.  Notice  of  sale. 

308.  Sale,  how  and  where  made. 

309.  Report  of  sale. 

310.  Approval  of  report  and  deed. 

311.  Deed  made  by  succeeding  administrator,  etc. 

312.  Effect  of  deed. 

313.  Court  may  order  sale  of  land  without  petition. 

314.  Lands  may  be  divided  into  town  lots,  etc. 

315.  Personal  estate  may  be  reserved  and  real  estate  sold. 

316.  When  the  real  estate  is  bound  by  the  lieu  of  a  judgment  or 

attachment. 

317.  Same — When  bound  by  several  liens,  etc. 

318.  Sale  of  leasehold  interests. 

§  298.  Jurisdiction  of  Probate  Court. — The  constitution 
of  the  state  of  Missouri  (article  6,  §  34)  gives  probate  courts 
"jurisdiction  over  all  matters  pertaining  to  probate  business, 
to  granting  letters  testamentary  and  of  administration,  the  ap- 
pointment of  guardians  and  curators  of  persons  of  unsound 
mind,  settling  the  accounts  of  executors,  administrators,  cur- 
ators and  guardians,  and  the  sale  or  leasing  of  lands  by  ad- 
ministrators, curators  and  guardians."  This  constitutional 
provision  took  from  the  general  control  of  circuit  courts,  and 
vested  in  the  probate  courts,  jurisdiction  over  cases  where  it 
is  sought  to  subject  lands  of  the  deceased  to  the  payment  of 
his  debts  upon  the  failure  of  personal  assets.  As  the  Supreme 
Court  of  Missouri  has  said :  "The  scheme  and  system  of  the 
administration  of  the  probate  law  there  enacted  are  said  by 
those  who  are  supposed  to  be  judges  of  such  matters  to  be 
the  most  perfect  and  complete  system  in  the  world,  leaving 
but  few  emergencies  or  contingencies  where  the  old  chancery 


§  299  SALE    or    REAL    ESTATE,  ETC.  307 

powers  of  courts  of  general  jurisdiction  must  be  resorted  to 
in  order  to  do  business."  ^ 

In  cases  where  attempt  is  made  to  subject  lands  of  a  de- 
ceased to  the  payment  of  his  general  debts,  it  has  been  held, 
practically  without  exception,  that  the  exclusive  jurisdiction 
over  the  subject-matter  was  vested  in  the  probate  courts.-  As 
there  is  furnished  at  law  a  full,  adequate  and  complete  rem- 
edy, courts  of  equity  will  not  and  cannot  assume  jurisdicti(jn. 
The  effect  of  these  decisions  is  that  the  chancery  jurisdic- 
tion, which  formerly  existed  in  England  over  matters  concern- 
ing the  settlement  and  distribution  of  estates,  and  particularly 
over  the  subjection  of  real  estate  to  the  payment  of  general 
debts  of  the  deceased  has  been  superseded  by  the  probate  sys- 
tem provided  in  our  laws.  It  will  be  noted  that  the  constitu- 
tional provision  above  quoted,  granting  jurisdiction  to  probate 
courts,  does  not  give  as  full  a  control  to  such  courts  over  the 
leasing  and  sale  of  real  estate  by  executors  as  it  does  over 
the  leasing  and  sale  by  administrators ;  the  word  "executor"  be- 
ing omitted  from  that  clause  of  the  section.  Such  has  been  the 
interpretation,  however,  placed  upon  this  section  that  the  sale 
and  leasing  of  real  estate  by  executors,  where  it  concerns  the 
payment  of  debts  of  the  deceased,  is  a  matter  solely  within  the 
authority  and  under  the  control  of  the  probate  courts  as  dis- 
tinguished from  courts  of  equity.  Distinction  between  the  au- 
thority of  the  executor  over  real  estate  and  that  of  the  ad- 
ministrator is  made  where  it  concerns  lands  that  are  devised 
subject  to  incumbrances. 

§  299.  Disposition  of  Incumbered  Real  Estate. — It  is 
also  provided  by  statute  that  if  any  person  die,  leaving  land 
incumbered  by  mortgage  or  deed  of  trust,  or  any  lien  what- 
ever, or  owning  any  equity  of  redemption,  or  leaving  mort- 
gaged or  pledged  any  personal  property,  and  shall  not  have 
devised  the  same,  or  provided  for  the  redemption  thereof  by 
will,  the  court  shall  have  power,  if  in  its  judgment  it  will  pro- 
mote the  interest  of  the  estate,  and  not  be  prejudicial  to  cred- 
itors, to  order  the  executor  or  administrator  to  redeem  the 
same  out  of  the  personal  assets  of  the  estate,  or  to  order  the 
sale  of  the  other  real  estate  to  redeem  such  land  or  personal 
property  so  incumbered.  If  the  redemption  would  injure  the 
estate  or  creditors,  or  there  would  not  be  assets  to  redeem  the 

1  Scott  V.  Ko.vstoii,  22.'}  Mo.  508,  12:i   S.  AV.  4.-.4. 

2  Da  IT  V.  Thoniiis.  127  Uo.  App.  1,  lOG  S.  W.  95;  Scott  v.  Roy. 
ston,  223  Mo.  5G8,  12:]  S.  W.  454. 


308  SALE    OF   REAL   ESTATE,  ETC.  §  299 

estate  after  payment  of  debts,  the  court  shall  order  all  the 
rig"ht,  title  and  interest  of  the  estate  to  such  property  to  be  sold 
at  public  or  private  sale.^ 

It  is  customary  that  the  proceedings  for  sale  or  redemption 
of  real  estate  under  this  section  be  similar  to  those  in  the  case 
of  the  sale  of  lands  for  the  payment  of  general  debts  of  the 
deceased.  This  is  not  strictly  necessary,  however,  under  the 
statute.  Although  the  statute  does  not  in  terms  require  it  the 
Supreme  Court  of  Missouri  in  the  case  of  State  ex  rel.  Deems 
V.  Holtcamp,  151  S.  W.  153,  held  that  the  pul^lication  required 
in  the  case  of  sale  of  lands  for  payment  of  debts  is  essential  to 
the  validity  of  the  sale  of  the  equity  in  incumbered  real  estate. 
It  will  be  noted  that  the  section  does  not  apply  or  give  authority 
for  the  sale  of  incumbered  property  devised  or  the  redemption 
of  which  is  provided  for  by  will.  If  the  debt  secured  by  the 
mortgage  or  deed  of  trust  is  allowed  as  a  general  claim  against 
the  estate,  and  the  equity  of  redemption  in  the  land  be  sold 
by  the  administrator  to  pay  debts,  and  the  debt  be  discharged 
with  the  proceeds  of  the  sale,  the  administrator  may  recover 
the  amount  so  paid  out  of  the  lands  in  the  hands  of  the  pur- 
chaser at  the  administrator's  sale.  Another  section  of  the  stat- 
utes provides  that  if  any  person  shall  die  owning  real  estate 
on  which  there  is  an  outstanding  deed  of  trust  or  mortgage, 
or,  having  pledged  or  mortgaged  personal  property  with  power 
of  sale,  shall  die,  no  sale  shall  take  place  under  said  deed  of 
trust  or  mortgage  conveying  real  estate  within  nine  months 
after  the  death  of  such  person,  and  no  sale  shall  take  place  of 
said  personal  property  so  mortgaged  or  pledged  within  four 
months  after  the  death  of  such  person."*  It  is  also  provided 
that  when  a  claim  is  allowed  against  an  estate  which  is  secured 
by  mortgage,  deed  of  trust  or  other  lien  held  by  the  creditor, 
the  same  may  be  allowed  as  other  claims,  but  shall  not  be  paid 
until  such  security  held  by  the  claimant  has  been  exhausted; 
but  if  such  security  be  not  sufficient  to  pay  off  and  discharge 
the  debt  of  such  creditor,  then  such  creditor  for  the  residue 
of  his  debt  shall  be  entitled  in  common  with  other  creditors 
to  have  the  same  paid  out  of  the  estate.^  This  provision  is 
given  such  interpretation  by  the  courts  as  will  cause  it  to  har- 
monize with  the  general  purpose  of  the  probate  law.  It  must 
be  construed  in  the  light  of  its  sister  statutes.     Thus,  where 

3  Rev.  St.  1909,  §§  147,  148. 

4  Rev.  St.  1909,  §  149.  c  Rev.  St.  1909,  §  197., 


§  299  SALE   OF   EEAL    ESTATE,   ETC.  309 

there  are  no  creditors  except  one  who  holds  a  deed  of  trust  on 
the  homestead  as  security,  it  is  permissible  to  satisfy  this  in- 
debtedness out  of  the  personal  assets." 

The  deed  of  the  executor  or  administrator  made  pursuant 
to  the  order  of  the  court  for  the  sale  of  the  etjuity  of  deceased 
in  incumbered  real  estate  will  convey  to  the  purchaser  all  the 
title  and  interest  of  the  deceased  in  the  land  at  the  time  of  his 
death. ^  Where  the  deceased  has  given  a  deed  of  trust  or 
mortgage  with  power  of  sale,  no  sale  can  be  made  under  such 
deed  or  mortgage  within  nine  months  after  the  death  of  the 
deceased.^  This  does  not  apply  to  a  deed  of  trust  or  mort- 
gage given  by  a  prior  owner,  but.  only  to  such  as  are  given  by 
the  decedent.**  This  provision  affords  an  opportunity  to  the 
executor  or  administrator  to  sell  the  interest  of  the  deceased, 
or  pay  off  the  debt,  as  the  court  may  deem  best  for  the  estate. 

If  a  note,  bond,  account  or  other  indebtedness  belonging  to 
the  estate  of  any  lunatic  or  person  of  unsound  mind,  minor  or 
deceased  person,  be  secured  by  a  mortgage  or  deed  of  trust, 
vendor's  lien  or  other  lien  on  any  real  estate,  and  the  same  re- 
mains due  and  unpaid,  the  executor,  administrator,  guardian 
or  curator  of  such  estate  may,  under  order  of  the  probate 
court  having  jurisdiction  of  the  estate,  purchase  such  real  es- 
tate at  a  sale  made  under  the  mortgage,  deed  of  trust  or  other 
lien,  at  a  price  not  exceeding  the  amount  due  such  estate,  and 
receive  a  deed  therefor  and  hold  the  premises  in  trust  for  the 
benefit  of  the  persons  who  would  have  been  entitled  to  the 
money  secured  by  said  lien;  but  if  the  probate  court  be  sat- 
isfied that  the  widow  has  received  the  articles  or  money  going 
to  her,  and  such  real  estate  will  not  be  needed  to  pay  the  debts 
of  such  deceased  person,  the  court  must  in  such  order  require 
the  deed  to  be  made  to  and  in  the  name  of  the  heirs  and  dev- 
isees of  such  deceased  person,  and  if  the  purchase  be  by  a 
guardian  or  curator  the  wards  will  be  seized  of  the  property, 
and  the  deed  must  be  made  to  them,  and  the  premises  may  be 
leased,  sold  or  disposed  of  as  in  other  cases,  and  if  purchased 
by  an  executor  or  administrator,  it  will  be  assets  in  his  hands 
to  be  administered   and  accounted   for  as  such,  and  may  be 

6  Knight  V.  Newkirk,  92  AIo.  App.  2oS ;  Darr  v.  Thomas,  127  Mo. 
App.  1.  106  S.  W.  9.";  Howard  v.  Strode,  128  Mo.  App.  482,  100  S. 
W.  116. 

7  Rev.  St.  1909,  §  146. 

8  Rev.  St.  190!),  S  149 ;  Lass  v.  Sternberg,  50  Mo.  125. 
»  Lass  v.  Sternberg,  50  Mo.  125. 


:U0  SALE    OF   REAL    ESTATE,   ETC.  §  300 

leased  or  sold  for  the  payment  of  debts  by  order  of  the  court 
upon  petition  filed  as  in  other  cases.^"  ' 

§  300.  Sale  of  Real  Estate  for  Payment  of  Debts — What 
May  be  Sold. — Lands  are  not  assets  at  common  law,  except 
as  they  are  subjected  to  the  authority  of  an  administrator  by 
order  of  a  competent  court. ^^  The  personal  estate  is  the  pri- 
mary fund  for  the  payment  of  the  debts/-  and  it  is  only  when 
the  personal  estate  is  insufficient  to  pay  the  debts  and  legacies 
that  an  administrator  has  anything  to  do  with  real  estate.^-' 
Lands  cannot  be  sold  as  a  general  thing  for  the  payment  of 
debts  created  after  the  death  of  the  deceased ;  but  if  the  will 
direct  the  payment  of  such  an  obligation  it  would  constitute 
a  charge  in  equity  on  the  land,  which  might  be  enforced,  not 
in  a  probate  court,  but  in  a  court  of  chancery.^* 

And  if  the  debt  be  created  by  the  act  of  the  deceased,  but 
the  right  of  action  does  not  accrue  until  after  his  death,  or  if 
the  administrator  in  an  action  to  recover  the  real  estate  having 
first  obtained  from  the  probate  court  the  right  to  rent  the  land 
for  payment  of  debts,  incurs  expenses  and  costs,  the  land 
might  be  sold  to  pay  the  same.^"' 

We  have  said  that  lands  sold  by  the  deceased  to  defraud  his 
creditors  could  not  be  sold  or  recovered  by  the  administrator. 
Creditors  must  take  care  of  their  own  interest,  and  may  main- 
tain a  suit  to  subject  such  property  to  the  payment  of  their 
demands,  and  the  record  of  demands  allowed  against  the  es- 
tate, including  plaintifif's,  may  be  given  in  evidence,  together 
with    the    inventory    of    the    estate    to    show    insolvency.^*' 

The  real  estate  which  has  not  been  devised  must  first  be 

10  Rev.  St.  1909,  §§  102,  10.3;  McPike  v.  McPike,  111  Mo.  21G.  20 
S.  W.  12;  Emmons  v.  Gordon,  140  Mo.  490,  41  S.  W.  998,  62  Am. 
St.  Rep.  7.34. 

11  Sheldon  v.  Rice's  Estate,  .30  Mich.  296,  IS  Am.  Rep.  136;  Mc- 
Pike V.  :*IcPike,  111  Mo.  216,  20  S.  W.  12 ;  McQuitty  v.  Wilhite,  218 
Mo.  586,  117  S.  W.  7.30,  131  Am.  St.  Rep.  561. 

12  Chandler  v.  Chandler,  78  Ind.  417. 

13  Edwards  v.  Haverstick,  47  Ind.  138;  Hall  v.  Farmers'  &  Mer- 
chants' Bank,  145  Mo.  418,  46  S.  W.  1000;  Emmons  v.  Gordon,  140 
Mo.  490,  41  S.  W.  998,  62  Am.  St.  Rep.  734. 

14  Trustees  of  General  Assembly  of  Presbyterian  Church  of  the 
U,  S.  V.  McElhinney,  61  Mo.  540;  Hall  v.  Farmers'  &  Merchants' 
Bank,  145  Mo.  418,  46  S.  W.  1000. 

15  State  ex  rel.  Ziegenhein  v.  Tittmann,  103  Mo.  553,  15  S.  W.  9.36. 
18  Gentry  v.  Field,  143  Mo.  399,  45  S.  W.  286;   Hall  v.  Farmers'  & 

Merchants'  Bank,  145  Mo.  418,  46  S.  W.  1000. 


§  300  SALE    OF   REAL    ESTATE,  ETC.  311 

sold  to  pay  debts,  unless  a  different  arrangement  of  assets 
for  payment  of  debts  has  been  made  by  the  will. 

Lands  cannot  be  devised  so  as  to  prevent  their  sale  for  the 
payment  of  debts,  if  necessary.*'  And  they  cannot  be  sold 
simply  to  pay  costs  of  administration,  there  being  no  debts;  *^ 
nor  for  debts  contracted  after  the  death  of  deceased,  unless 
in  the  course  of  administration  and  for  the  benefit  of  the  es- 
tate, nor  for  any  jiurpose  other  than  specially  provided  for  in 
the  statute.* °  If  the  personal  estate  has  been  reduced  by 
maladministration  real  estate  cannot  be  sold  until  the  remedy 
on  the  bond  has  been  exhausted.-"  Lands  in  which  there  is  a 
homestead  may  be  sold  and  the  purchaser  take  possession  when 
the  homestead  right  has  terminated.-*  Or  the  whole  estate 
may  be  sold  and  the  price  divided  according  to  the  respective 
interests  of  the  parties.--  The  sale  of  the  homestead  would 
not  affect  the  rights  of  the  widow  and  children  unless  it  be 
sold  to  pay  a  debt  contracted  before  the  homestead  was  ac- 
quired.-" A  homestead  may  be  sold  by  the  administrator  to 
pay  debts  for  which  it  was  liable  while  the  deceased  was  in 
life,  as  for  purchase  money  or  a  lien  secured  by  a  mortgage 
given  by  deceased  and  wife.-''  But  the  administrator  may 
properly  satisfy  out  of  the  personal  assets,  where  it  will  not 
work  to  the  prejudice  of  other  creditors,  an  indebtedness  se- 
cured by  a  deed  of  trust  upon  the  homestead.-^  On  an  ap- 
plication by  an  administrator  for  an  order  to  sell  real  estate 
if  the  legal  title  is  in  the  deceased  the  party  who  resists  the 
application  must  show  that  deceased  had  no  interest  in  it. 
but  if  the  title  is  in  some  other  person,  the  burden  is  on  the 
administrator  to  show  that  deceased  had  an  interest  in  it.-® 
And  it  seems  that  where  the  deceased  had  a  pre-emption  right 

17  Shaw  V.  Nicbolay.  30  ^lo.  99. 

18  Farrar  v.  Dean,  24  Mo.  10;  State  ex  rel.  Ziegonliein  v.  Tittmann. 
103  Mo.  553,  15  S.  W.  93G;  Howell  v.  Jump,  140  .Mo.  441,  41  S.  W. 
97G. 

19  Bonipart's  Adin'r  v.  Lucas.  21  Mo.  59S ;  Jarvis  v.  Russick.  12 
Mo.  04 ;  Trustees  of  General  Assembly  of  Presbyterian  Church  of 
the  T^.  S.  V.  McElhinney,  01  Mo.  540. 

2  0  Merritt's  Estate  v.  Morritt,  02  Mo.  150;  Swan  v.  Thompson,  30 
Mo.  App.  155. 

21  Poland  V.  Vesper,  07  Mo.  727. 

22  Keene  v.  Wyatt.  100  Mo.  1,  00  S.  VT.  10.37. 

23Roffors  V.  ]Marsh,  73  Mo.  04;  Keene  v.  Wyatt,  100  Mo.  1,  60 
S.  W.  1037. 

24  Rrubaker  v.  Jones.  23  Kan.  410. 

25  Darr  v.  Thomas.  127  Mo.  App.  1.  100  S.  W.  93. 
28  Amos  V.  Livingston,  20  Kan.  100. 


312  SALE    OF   KEAL    ESTATE,   ETC.  §  301 

to  land  under  the  United  States  laws,  and  the  administrator 
made  the  necessary  payments  and  completed  the  right  to  it 
out  of  the  funds  of  the  estate,  the  patent  inures  to  the  benefit 
of  the  heirs,  and  the  probate  court  has  no  jurisdiction  to 
order  a  sale  of  such  land,  and  the  administrator's  deed  will 
convey  no  title.-' 

§  301.  The  Petition  and  Exhibits. — If  the  personal  es- 
tate shall  prove  insufiicient  to  pay  the  tlebts  and  legacies  of  the 
deceased,  it  becomes  the  duty  of  the  executor  or  administra- 
tor, as  soon  as  he  conveniently  may,  after  discovering  the  in- 
sufficiency of  personal  assets,  to  present  to  the  probate  court 
a  petition,  stating  the  facts,  and  praying  for  the  sale  of  the 
real  estat-e,  or  so  much  thereof  as  will  pay  the  debts  and  leg- 
acies of  the  deceased.^ ^  This  should  be  done  within  a  reason- 
able time,  and  what  is  a  reasonable  time  must  be  determined 
by  the  facts  in  each  case.-®  The  petition  must  be  accompanied 
by  a  true  account  of  the  administration  so  far  as  made,  a  list 
of  debts  due  to  and  by  the  deceased,  and  remaining  unpaid, 
and  an  inventory  of  the  real  estate  and  of  the  remaining  per- 
sonal estate,  w^ith  its  appraised  value,  and  all  the  other  as- 
sets in  the  hands  of  the  executor  or  administrator,  the  whole 
to  be  verified  by  the  affidavit  of  the  executor  or  administra- 
tor.3« 

The  petition  should  but  need  not  describe  the  land,  if  it  be 
described  and  can  be  ascertained  from  the  exhibits  required  to 
be  filed  wnth  the  petition. ^^  If  there  be  a  joint  administration 
all  the  executors  or  administrators  should  join  in  the  peti- 
tion.^ 

§  302.  Same. — If  the  executor  or  administrator  does  not 
make  the  application — fails  and  refuses — any  creditor  or  other 
person  interested  in  the  estate  may  do  so,  giving  twenty  days' 
notice  to  the  executor  or  administrator.  The  executor  or  ad- 
ministrator must  then,  on  or  before  the  first  day  of  the  term 
of  court  at  which  he  is  notified  that  such  application  will  be 
made,  file  with  the  clerk  perfect  accounts,  lists,  and  inven- 
tories, made  out  and  verified,  as  those  required  to  accompany 
a  petition  by  himself.     Should  he  fail  to  file  those  papers  the 

27  Rogers  V.  Clemmans,  26  Kan.  522. 

28  Rev.  St.  1909,  §  150;  Rojicrs  v.  Johnson,  125  Mo.  202,  28  S.  W. 
635 ;  Stowe  v.  Banks,  12;}  Mo.  672,  27  S.  W.  347 ;  Agan  v.  Shannon, 
103  Mo.  661,  15  S.  W.  757. 

2  9Gunby  v.  Brown,  80  Mo.  253. 

30  Rev.  St.  1909,  §  151. 

31  Bray  v.  Adams,  114  Mo.  486,  21  S.  W.  853. 

3  2  Stowe  v.  Ranks,  123  Mo.  672.  27  S.  W.  347. 


§  302  SALE    OF    REAL    ESTATE,  ETC. 


313 


court  may  compel  him  to  do  so  by  attachment."^  It  is  the 
duty  of  the  administrator  to  produce  such  exhibits ;  the  cred- 
itor is  not  obliged  to  do  so.'^  The  accounts,  lists  and  inven- 
tories required  to  be  filed  with  the  petition  are  not  necessary 
to  give  the  court  jurisdiction  of  the  matter,  and  a  failure  to 
file  them  would  not  render  the  sale  void.^' 

form  of  Petition 

State  of  Missouri,     |  ^^^  ^,^^^  j.^.^,,^^^^^,  ^,  ,^,,.j  ,,f ^.  ,,^„ty_ 

County  of  .  j 

In  tlio  Matter  of  the  Estate  of    )    petition  for  Sale  of  Real  Estate. 

K.  K.,  Deceased.  \ 

To  the  Honorable  Trohate  Court  of  said  County: 

Your  petitioner.  John  Davis,  administrator  of  the  estate  of  R.  R., 
deceased,  shows  to  the  court  that  the  personal  estate  of  the  deceased, 
so  far  as  the  same  has  come  to  his  knowledge  and  possession,  is  in- 
sufficient to  pay  the  debts  (and  legacies)  of  the  decedent;  that  the 
account  hereto  annexed  marked  "A"  is  a  true  account  of  the  ad- 
ministration of  said  estate  by  your  petitioner,  to  the  date  hereof, 
by  which  it  appears  that  there  is  a  balance  of  personal  assets  on 

hand  of  .$ ;    that  the  exhibit  filed  herewith  marked  "IV  is  a 

correct  list  of  the  debts  due  to  and  by  the  deceased,  and  remaining 
unpaid,  from  which  it  appears  that  the  debts  due  the  estate  are 
$ ,  and  the  debts  against  the  estate  are  $ ;  that  the  ex- 
hibit filed  herewith  marked  "C"  is  a  correct  inventory  of  the  real 
estate,  and  of  the  remaining  personal  estate  of  the  deceased,  with 
its  appraised  value;  that  there  are  no  other  assets  of  the  estate 
in  the  hands  of  your  petitioner.  [That  said  real  estate  is  bound  by 
the  lien  of  a  judgment  (or  attachment)  for  the  sum  of  dol- 
lars, which  was  rendered  in  the court  of  said  county,  on  the 

day  of  ,  19 — ,  against  the  deceased,  in  favor  of  E.  F. 

If  there  be  no  lien  this  clause  should  be  omitted.] 

[If  there  be  several  tracts  of  land,  and  it  is  not  necessary  to  sell 
them  all,  say:]  That  the  following  tract  of  land  will  sell  the  most 
readily  and  to  the  best  advantage  for  tlie  estate  and  will,  it  is  be- 
lieved, be  sufTicient  to  pay  the  debts  (and  legacies)  of  the  estate  re- 
maining unpaid,  to-wit:    (here  describe  it). 

Wherefore  your  petitioner  prays  the  court  for  an  order  to  sell 
the  real  estate,  above  described,  of  the  said  R.  R.,  deceased,  or  so 
much  and  such  parts  thereof  as  may  be  necessary  for  the  payment 
of  the  debts  (and  legacies)  against  said  estate. 

J.  D.,  Administrator. 

The  said  J.  D.,  being  duly  sworn,  says  that  the  above  and  fore- 
going petition  and  exhibits  thereto  annexed  are  true  to  the  best  of 
his  information,  knowledge  and  belief.  J.  D. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — . 

J.  R , 

(Style  of  office.) 

8  3  Rev.  St.  1009,  §§  154,  15.5. 
3  4  Grayson  v.  AVeddle,  (i?>  Mo.  .52.*?. 

3  5  Overton  v.  .Johnson.  17  Mo.  442;  Brown  v.  Woody.  22  Mo.  App. 
25.3:    Mount  v.  Valle.  19  Mo.  021. 


314  SALE    OF   KEAL    ESTATE,   ETC.  §  302 

The  petition  need  not  state  that  the  deceased  died  seized  of 
the  real  estate  sought  to  be  sold.  The  deed  of  the  adminis- 
trator only  conveys  to  the  purchaser  the  right,  title  and  in- 
terest which  the  deceased  had  in  the  land.^'''  Yet  where  the 
decedent  has  an  interest,  and  his  title  is  in  such  a  condition 
as  must  produce  a  sacrifice,  the  proceedings  should  be  de- 
layed until  the  title  can  be  relieved  from  embarrassment,  when 
it  can  be  done  before  the  sale."  The  petition  must  be  varied 
to  meet  the  different  state  of  facts  existing  in  each  case. 

§  303.  Notice  of  Petition. — When  the  petition  and  ac- 
counts, lists  and  inventories  are  filed,  the  court  will  order  that 
all  persons  interested  in  the  estate  be  notified  thereof,  and  that 
unless  the  contrary  be  shown,  on  the  first  day  of  next  term 
of  the  court,  an  order  will  be  made  for  the  sale  of  the  whole, 
or  so  much  of  said  real  estate  as  will  pay  the  debts  of  the  de- 
ceased. The  notice  must  be  published  for  four  weeks  in  some 
newspaper  in  the  county  in  which  the  proceedings  are  had. 
or  by  ten  handbills,  to  be  put  up  at  ten  public  places  in  said 
county,  at  least  twenty  days  before  the  term  of  the  court  at 
which  any  such  order  will  be  made,  in  the  discretion  of  the 
court.  If  there  are  heirs  or  devisees  residing  in  the  county 
there  must  be  personal  service  of  notice  on  them  at  least  ten 
davs  before  the  term  of  court  at  which  said  order  of  sale  is 
to  be  made.^^ 

Order  for  Publication  of  Notice  in  Missouri 
State  of  Missouri,  "1  In  tlie  Probate  Court  of  said  County, 


County,     r  Term,  19—. 

Estate  of  ,     \  Order  of  Publication. 

Deceased.  J 

Now  on  this  day  comes  J.  D.,  administrator  of  the  estate  of  R.  R., 
late  of  said  county,  deceased,  and  presents  to  the  court  his  petition 
praying  for  an  order  for  tlie  sale  of  certain  real  estate  of  which 
said  Pt.  R.  died  seized,  described  as  follows:  (here  describe  land),  to 
pay  the  debts  of  said  estate ;  which  said  petition  is  accompanied  by 
the  accounts,  lists  and  inventories  as  required  by  law,  showing  that 
said  estate  is  indebted  and  that  said  debts  are  unpaid,  and  that 
there  is  not  sufficient  assets  on  hand  to  pay  the  same.     On  exainina- 

3  0  Trent's  Adm'r  v.  Trent,  24  Mo.  P.07. 

3T  Trent's  Adm'r  v.  Trent,  24  Mo.  307 ;  Valle  v.  P.ryan,  19  Mo.  423; 
Macey  v.  Stark,  116  Mo.  481,  21  S.  W.  10S8 ;  In  re  Wood's  Estate, 
138  Mo.  App.  258,  120  S.  W.  63.^. 

3  8  Rev.  St.  1909,  §  152;  Hutchinson  v.  Shelley,  133  Mo.  400,  34 
S.  W.  838 ;  Desloge  v.  Tucker,  196  Mo.  587,  94  S.  W.  283 ;  Valle  v. 
Fleming,  19  Mo.  454,  61  Am.  Dec.  566. 


§  303  SALE    OF    REAL    ESTATE,   ETC.  315 

tion  thereof,  it  is  ordered  by  tlie  court  that  all  persons  interested  in 
the  estate  of  said  deceased  be  notified  that  application  as  aforesaid 
has  been  made,  and  that  unless  the  contrary  be  shown  on  or  before 

the  first  day  of  the  next  term  of  this  court,  to  be  held  on  the 

of next,  an  order  will  be  made  for  the  sale  of  the  real  estate 

in  said  petition  described  or  as  much  thereof  as  shall  be  sufficient 
for  the  payment  of  said  debts.  And  it  is  further  ordered  that  a 
copy  of  this  order  be  published  in  a   newspaper  published  in  said 

county  of  ,   for  four  weeks  prior  to   the  next   term  of  this 

court. 

When    publication   is   to  be   by  posting   of   handbills,    the 
following  form  may  be  used : 

Order  of  Publication 
On  Petition  to  Sell  Real  Estate  for  the  Payment  of  Debts. 

State  of  Missouri,     )g_  In  the  Probate  Court  of  said  County. 

County  of  .  I 

,  10-. 

Estate  of  R.  R.,  Deceased. 

Now  on  this  day  comes  J.  D.,  administrator  of  the  estate  of  R.  R., 

deceased,  late  of  said  county  of  ,  and  presents  to  the  court 

his  petition,  praying  for  an  order  for  the  sale  of  certain  real  estate, 

of  which  said  R.  R.  died  seized  and  situate  in  county,  state 

of  Missouri,  and  described  as  follows:  (Here  describe  land),  to  pay 
the  debts  of  said  deceased,  accompanied  by  an  account  of  his  admin- 
istration, a  list  of  debts  due  to  and  owing  by  said  deceased,  and  re- 
maining unpaid,  and  an  inventory  of  the  real  estate,  and  of  the 
remaining  personal  estate,  with  its  appraised  value  and  all  the  other 
assets  in  his  hands,  the  whole  verilied  by  the  affidavit  of  said  ad- 
ministrator. 
Thereupon  it  is  ordered  by  the  court  that  all  persons  interested 
"^       in  said  estate  be  notified  thereof,  and  unless  the  contrary  be  .shown 

vj^  ;     by  the  first  day  of  the  next term  of  this  court,  the  same  being 

\        Monday,  ,  19 — ,  an  order  will   be  made  for  the  sale  of  the 

whole  or  so  much  of  such  real  estate,  hereinbefore  described  and  in 
0/        said  petition  mentioned,  as  will  pay  the  debts  of  said  deceased. 
<V  i         And  it  is  further  ordered  that  notice  thereof  be  given  by  putting 
*^  I     up  ten  handbills  in  ten  public  places  in county,  at  least  twen- 
ty days  before  the  first  day  of  the  next  term  of  this  court, 

and  that  personal  service  be  made  upon  the  heirs  of  said  decedent 

residing  in  the  county  of ,  to-wit,  A.  B.,  C.  D.,  and  E.  F.,  at 

least  ten  days  before  the  first  day  of  said term  of  this  court, 

until  which  time  this  cause  is  continued. 

,  Clerk  of  Probate  Court. 

The  return  may  be  as  follows: 

State  of  Missouri,      |  gg 

County  of  .  ( 

I  hereby  certify  that  I  did  on  the day  of ,  10 — ,  the 

.>?ame  being  at  least  twenty  days  before  the  next  regular term 


316  SALE    OF   KEAL    ESTATE,  ETC.  §  303 

of  the  probate  court  of  county,  state  of  Missouri,  put  up  at 

teu  public  places  in  said  county  and  state  ten  copies  of  the  witliiu 
order. 

And   I   further  certify  that   I   did,  on  the  day   of  , 

19 — ,  in  said  county  of  ,  further  execute  this  process  by  de- 
livering a  true  copy  of  the  within  order  to  the  within  named  heirs 
or  devisees,  to-wit,  A.   B.,  C.  D.  and   E.  F.,  tlie  same  being  at  least 

ten  days  before  the  first  day  of  the  next  regular  term  of  the 

said  probate  court  of  said  county. 

I.  T.,  Sheriff, 
By  J.  S.,  D.  S. 

This  order  must  be  entered  of  record,  and  a  copy  of  it  duly 
certified  must  be  inserted  in  the  newspaper  or  posted  up  as 
ordered  by  the  court. 

It  has  been  held  also  that  the  filing  of  the  petition  and  giv- 
ing notice  to  the  heirs  of  the  time  and  place  of  hearing  the 
petition  are  jurisdictional  facts  and  indispensable,  but  when  the 
court  thus  obtains  jurisdiction  no  irregularity  or  defect  in  the 
proceedings  will  ipso  facto  invalidate  the  deed.  The  failure  to 
describe  the  real  estate  sold  in  the  petition  and  order  of  sale 
will  render  the  deed  void  and  subject  to  collateral  attack.^^ 
But  the  failure  to  describe  the  land  in  the  petition  otherwise 
than  that  it  was  situate  in  the  county,  if  the  order  and  deed 
properly  describe  the  land,  has  been  held  not  to  invalidate  the 
sale,  although  it  is  an  irregularity  in  the  proceeding.**^  The 
failure  to  file  the  lists,  accounts  and  inventory,  will  not  invali- 
date the  order  of  sale.*^ 

If  notice  be  given  by  publication  in  a  newspaper,  it  must 
be  published  four  weeks — twenty-eight  days  must  intervene 
between  the  first  insertion  of  the  notice  and  the  first  day  of 
the  term  when  the  application  is  to  be  for  hearing.-*- 

§  304.  Hearing  of  the  Petition — Order  of  Sale. — Upon 
proof  of  publication  being  made,  (either  by  affidavit  of  the 
publisher,  or  affidavit  of  the  person  who  posted  up  the  hand- 

3  0  RoI)erts  v.  Thomason,  174  Mo.  378,  74  S.  W.  624. 

40  Cunningham  v.  Anderson,  107  jNIo.  371,  17  S.  W.  972,  28  Am. 
St.  Rep.  417;  Hutchinson  v.  Shelley,  133  Mo.  400,  38  S.  W.  838; 
Price  V.  Springfield  Keal-Estate  Ass'n,  101  Mo.  107,  14  S.  W.  57, 
20  Am.  St.  Rep.  595 ;  Young  v.  Downey,  145  Mo.  250,  46  S.  W.  10S6, 
68  Am.  St.  Rep.  568. 

41  Brown  v.  Woody,  22  Mo.  App.  253;  Camden  v.  Plain,  91  Mo. 
117,  4  S.  W.  86;  Bray  v.  Adams,  114  Mo.  486,  21  S.  W.  853;  Rob- 
bins  V.  Boulware,  190  IMo.  33,  88  S.  W.  674,  109  Am.  St.  Rep.  740. 

4  2  Young  V.  Downey.  145  Mo.  250,  46  S.  W.  1086,  68  Am.  St.  Rep. 
568;  Agan  v.  Shannon,  103  Mo.  661,  15  S.  W.  757;  Teverbaiigli  v. 
Hawkins,  82  Mo.  180 ;    Ratliff  v.  Magee,  165  Mo.  461,  65  S.  AV.  713. 


§  304  SALE    OF    RKAL    ESTATE,   ETC.  317 

bills,)  as  directed  by  the  court,  and  proof  of  service  of  the 
notice  on  the  heirs  or  devisees,  tlie  court  will  hear  the  testi- 
mony, and  may,  if  necessary,  examine  all  parties  on  oath 
touchint^  the  application,  and  make  an  order  for  the  sale  of 
the  real  estate,  or  any  part  thereof  in  this  state,  at  public  or 
private  sale."  Upon  the  hearing  any  person  interested  in  the 
land,  as  the  widow,  heir,  devisee,  leij^atee,  or  distributee,  may 
appear  and  resist  the  ai)plication,  and  show  that  the  judg- 
ments or  demands  against  the  estate  were  obtained  by  fraud 
or  collusion,  etc.** 

If  any  person  appear  and  object  to  an  order  of  sale  being 
made,  and  if  it  appear  that  either  the  petition  or  the  objec- 
tions are  unreasonable,  the  court  may  award  costs,  in  its  dis- 
cretion to  the  party  prevailing.  Ikit  if  no  good  reason  be 
shown  to  the  contrary,  and  it  appears  to  be  necessary,  the 
court  will  order  the  sale  of  the  land. 

Form  of  Order  of  Sale 

In  the  Probate  Court  of  the  County  of  ,   State  of  Missouri. 

Term,  19—. 

In  the  :\I:ittor  of  the  Estate  of] 

R.  R..  fhM-easofl,  I  No.  . 

J.  D.,  administrator.  J 

Order  of  Sale  of  Real  Estate. 

Now  comes  T.  D.,  administrator  of  tlie  estate  of  R.  R..  deceased, 
and  shows  to  the  court  tliat  tlie  order  of  publication  made  upon  the 
petition  of  said  administrator  asking  for  an  order  of  sale  of  cer- 
tain real  estate  of  the  deceased  has  been  published  accordinc;  to  law 
and  due  service  thereof  had  on  the  heirs  and  devisees  residing  in 
said  county,  and  prays  for  an  order  of  sale  pursuant  to  said  peti- 
tion and  notice,  whereupon  the  court,  having  heard  such  applica- 
tion, proceeds  to  hear  the  testimony  produced,  and  beins  satisfied 
that  the  personal  estate  of  the  deceased  in  the  hands  of  said  admin- 
istrator is  not  sufhcient  to  pay  the  debts  due  and  owing  by  said  es- 
tate, and  that  it  would  be  for  the  best  interest  of  said  estate  that 
the  real  estate  described  in  said  petition  and  order  of  publication 
be  sold  as  therein  prayed,  it  is  ordered  that  the  said  administrator, 
first  having  had  the  .'lanie  appraised  according  to  law,  do  sell  at 
private  sale  for  cash  in  hand  (or  on  the  following  terms,  to-wit:  One- 
third  in  cash  and  the  balance  in  equal  payments  of  iAs.  and  twelve 
months  from  the  day  of  sale  to  purchaser  to  give  notice  for  the  de- 

4  3  Rov.  St.  1000.  §  15.3. 

■*•  Allison  V.  Hunter,  9  Mo.  749:  Stewart  v.  Caldwell.  54  Mo.  5S6: 
Mayberry  v.  McClurg.  51  ^lo.  250:  Young  v.  Downey.  145  Mo.  250. 
46  S.  W.  lOSO.  68  Am.  St.  Rep.  5US :  Hutchinson  v.  Shelley,  10.3  M<1. 
400,  38  S.  W.  8.38. 


318  SALE    OF   REAL    ESTATE,  ETC.  §  304 

ferred  payments  and  a  deed  for  the  property  sold  to  be  executed  on 
complete  payment  of  the  purchase  money)  the  real  estate  mentioned 
in  said  petition  and  described  as  follows,  lo-wit:  (Here  describe  the 
land),  for  the  purpose  of  paying  the  debts  of  the  said  estate  as  afore- 
said, and  that  he  report  his  proceedings  therein  to  this  court  with- 
in ten  days  after  such  sale  is  made. 

If  the  sale  is  to  be  public  instead  of  private,  the  following 
form  may  be  followed: 

State  of  Missouri,     J 

County  of  .  j 

In  the  Probate  Court  for  the  County  of  .    Term,  19 — . 

In  the  Matter  of  A.  B.,  1  „    ,         .      , 
,  ,  I  Order  of  sale. 

deceased.  [ 

Now  at  this  day  comes  C.  D.,  administrator  of  A.  B.,  deceased, 
and  proves  to  the  court  that  the  order  of  publication  made  upon 
his  petition  at  the  term  thereof  has  been  published  accord- 
ing to  law,  and  due  service  thereof  had  on  the  heirs  and  devisees 
residing  in  said  county,  and  moves  for  an  order  of  sale,  pursuant  to 
said  petition  and  notice;  whereupon  the  court  proceeds  to  hear  the 
testimony  produced,  and  to  examine  the  parties  who  appear  touch- 
ing the  application  of  said  administrator  for  the  sale  of  real  estate, 
as  in  said  publication  mentioned ;  and  it  being  proved  to  the  court 
that  there  are  no  [or,  not  sufficient]  personal  estate  and  effects  of 
said  deceased  charged  with  the  payment  of  debts,  and  no  [or,  not 
sufficient]  assets  in  the  hands  of  said  administrator  to  pay  the  debts 

due  by  said  estate,  it  is  ordered  that  the  said  C.  D.  do,  on  the 

of next,  at  the door  of  the  court-house  of  the  county 

of ,  and  during  the  session  of  the  circuit  or  county  or  probate 

court  of  said  county,  between  the  hours  of  10  o'clock  in  the  fore- 
noon and  5  o'clock  in  the  afternoon  of  that  day,  expose  to  sale,  at 
public  vendue  or  outcry,  the  following  real  estate  in  the  petition  of 
said  administrator,  described,  to  wit  [describe  the  real  estate  ordered 
to  be  sold],  and  sell  the  same  for  the  purposes  in  said  petition  men- 
tioned, on  the  following  tei-ms,  to  wit  [one-third  in  cash  and  the 
balance  in  equal  payments  of  six  and  twelve  months  from  the  day 
of  sale,  the  purchaser  to  give  notes  for  the  deferred  payments  and 
a  deed  for  the  property  sold  to  be  executed  on  complete  payment  of 
the  purchase  money] ;  first  having  had  the  same  appraised,  and  no- 
tice of  the  time,  terms  and  place  of  said  sale  published  for  four 
weeks  prior  thereto  in  some  newspaper  in  this  state  [or,  by  ten 
copies  of  such  notice  put  up  in  public  places  in  said  county,  twenty 
days  before  the  day  of  sale],  as  directed  by  law,  and  that  he  make 
return  of  his  proceedings  within  ten  (10)  days  after  such  sale. 

§  305.  Same. — A  sale  made  Avithout  a  previous  order 
which  is  equivalent  to  a  judgment,  is  void,*"'  and  an  adminis- 
trator's deed  will  pass  no  title  to  land  not  described  or  included 

4''' Evans  v.  Snyder,  64  Mo.  516;  Hutchinson  v.  Shelley,  133  Mo. 
400,  38  S.  W.  838 ;  Greene  v.  Holt,  76  Mo.  677 ;  Melton  v.  Fitch,  125 
Mo.  281,  28  S.  W.  612. 


§  306  SALE    OF   REAL    ESTATE,   ETC.  319 

in  the  order  of  sale.*"  But  it  is  not  necessary  that  the  lands 
souf,dit  to  be  sold  should  be  embraced  in  the  list  attached  to  the 
petition ;  it  is  sufficient  if  they  be  referred  to  and  described 
in  the  petition  and  order  of  sale."*^  And  the  order  may  be 
general,  for  the  sale  of  real  estate,  including  equities  of  re- 
demption and  all  other  interests  of  the  deceased  in  the  prem- 
ises.*® It  is  not  essential  that  the  debts  should  have  been  al- 
lowed against  the  estate. ■»"  An  order  to  sell  at  public  sale  may 
be  changed  by  the  court  to  an  order  to  sell  at  private  sale."" 
It  has  been  held  that  where  the  title  of  the  purchaser  at  an  ad- 
ministrator's sale  fails,  the  payment  of  the  full  value  of  the 
land  and  the  application  of  the  money  to  relieve  other  lands 
still  in  the  hands  of  the  heirs,  creates  an  equity  in  favor  of  the 
purchaser  which  will  entitle  him  to  relief.^ ^  The  jud<?ment 
of  the  probate  court  as  to  the  necessity  for  the  sale  of  the  real 
estate  for  the  payment  of  debts  is  conclusive  in  a  collateral 
proceeding.^- 

§  306,  Appraisement  of  Real  Estate. — Before  an  execu- 
tor or  administrator  can  sell  any  real  estate  or  any  interest 
therein,  by  order  of  the  court,  he  must  have  it  appraised  by 
three  disinterested  householders  of  the  county  in  which  the 
land  lies.  The  appraisers  must  make  an  affidavit  that  they  will, 
according  to  the  best  of  their  abilities,  view  and  appraise  the 
estate  to  them  shown ;  and  they  must  view  and  appraise  the 
same,  and  deliver  to  the  executor  or  administrator  a  certificate 
thereof,  under  their  hands.-^'^  They  must  be  sworn  by  some 
officer  authorized  to  administer  oaths,  and  a  certificate  there- 
of be  inserted  in  or  annexed  to  the  return.  They  should  be 
appointed  by  the  administrator.'^* 


Affidavit  of  Appraisers 


State  of  Missouri, 
County  of 


A.  B,,  C.  D..  and  K.  F.,  on  their  oaths,  say  that  they  are  house- 
holders of  said   county    not  interested  in   tlie  estate  of  R,   R.,   de- 

46  Creene  v.  Holt,  7G  Mo.  G77;  Roberts  v.  Thoniason,  174  Mo.  378, 
74  S.  W.  G24 ;    Melton  v.  t^tch.  125  Mo.  281.  28  S.  W.  G12. 

4  7  Adams  v.  I^irrimore.  51  Mo.  1?.0;  Tutt  v.  Bayer,  51  Mo.  425; 
Evans  v.  Snyder,  G4  Mo.  516. 

4  8Valle  V,  Bryan.  19  Mo.  42.3:    .Tackson  v.  Mairruder,  51  Mo.  55. 

4  9  Grayson  v.  Weddle,  G3  Mo.  52.".. 

5  0  Adams  v.  Larrimore.  51  Mo.  1.30. 

61  .Jones  V.  Manly,  58  Mo.  559;   Evans  v.  Snyder,  G4  Mo.  516. 

r.2Macey  v.  Stark,  IIG  Mo.  481,  21  S.  W.  1088. 

51  Rev.  St.  1900.  S§  IGG.  107. 

5  4  Carney  v.  Havens,  2.3  Kan.  88, 


320  SALE    OF   REAL    ESTATE,   ETC.  §  306 

ceased,  and  tliat  they  will,  to  the  best  of  their  abilities,  view  and 
apprai.se  the  real  estate  to  them  shown  by  J.  D.,  administrator  of 
said  R.  R.  A.  B. 

C.  D. 
E.  F. 
Sworn  to  and  subscribed  before  me  this day  of ,  19 — . 


Certificate  of  Appraisement 

The  undersigned,  houseliolders  of  the  county  of  and  state 

of  ,  chosen  and  duly  sworn   to   view   and  appraise  the  real 

estate  to  us  shown  by  J.  D.,  administrator  of  the  estate  of  R.  R., 
deceased,  and  belonging  to  said  estate,  do  hereby  certify  that  we  have 
viewed  the  following  real  estate,  to-mt:    (here  describe  it),  and  ai>- 

praise  the  same  at  the  sum  of dollars.     If  there  are  several 

tracts  say:  and  appraise  the  value  of  each  tract  or  parcel  thereof 
at  the  sum  set  opposite  the  same  (here  set  out  each  tract  and  the 
value  of  the  same). 

Given  under  our  hands  this day  of ,  19 — . 

A.  B."^ 

Appraisers. 


C.  D.  J. 
E.  F.J 


Irregularities  in  the  appraisement  will  not  invalidate  the 
sale,  such  as  attaching  it  to  the  oath  of  the  appraisers  with- 
out being  signed  by  the  appraisers,^ ^  or  being  sworn  to  by  only 
two  of  them;^**  or  the  jurat  being  signed  as  administrator  in- 
stead of  the  title  of  the  officer." 

§  307.  Notice  of  Sale. — If  the  court  orders  the  land  to 
be  sold  at  public  sale,  the  executor  or  administrator  must  cause 
a  notice,  containing  a  particular  description  of  the  real  estate 
to  be  sold,  stating  the  time,  place  and  terms  of  sale,  to  be  pub- 
lished for  four  weeks  prior  to  said  sale,  in  some  newspaper 
in  the  county  where  the  land  is  situated,  if  there  be  one,  and 
if  there  be  none,  he  must  put  up  a  copy  of  such  notice  in  ten 
public  places  in  the  county  in  which  the  sale  is  to  be  made  at 
least  twenty  days  before  the  day  of  sale.'^'*  The  fourth  in- 
sertion of  the  notice  must  be  seven  days  before  the  day  of  sale 
or  twenty  days  must  intervene  between  the  first  publication 
and  the  day  of  sale.^^ 

S5  McVey  v.  McVey,  51  Mo.  406. 

5  8  Moore  v.  Wingate,  5'.',  Mo.  .398;  Johnson  v.  Beazley,  65  Mo.  250, 
27  Am.  Rep.  276. 

5  7  Moore  v.  Wingate,  5.3  Mo.  398. 

5  8  Rev.  St.  1909,  §  168. 

5  9  Young  v.  Downey,  145  Mo.  250,  46  S.  W.  1086,  68  Am.  St.  Rep. 
568 ;    RatliflE  v.  Magee,  165  Mo.  461,  65  S.  W.  713. 


§  308  SALE    OF   REAL    ESTATE,   ETC.  321 


Notice  of  Administrator's  Sale 

Notice  is  hereby  Kiveu  that  by  virtue  of  an  order  of  the  probate 

Cdurt  of  the  county  of and  state  of ,  made  at  the 

term  thereof,  aud  ou  the  day  of  ,  19 — ,  I,  J.  D.,  ad- 
ministrator of  the  estate  of  R.  R.,  deceased,  will,  on  the  day 

of ,  ID — ,  at  the  court  house  door  in  the  city  of ,  county 

of ,  and  during  the  session  of  the  court  of  said  county 

of  ,  sell  at  puitlic  auction,  all  the  interest  of  R.  R.,  deceased, 

in  and  to  the  following  real  estate,  to-wit:  (here  describe  it).  Terms 
of  sale :   (set  out  termsj.  J.  D., 

Administrator. 

In  any  case,  respecting  the  sale  of  real  estate,  where  a 
notice  or  pubHcation  is  required  to  be  given,  the  executor  or 
administrator  should  obtain  the  proper  proof  of  the  same,  and 
file  ii  with  the  papers  in  the  estate.  If  the  notice  is  given  by 
publication  it  should  be  proved  by  the  afiitlavit  of  the  pub- 
lisher, which  may  be  as  follows : 

Affidavit  of  Publisher 

State  of  ,        I  ^  ^ 

County  of  .  j  ''^' 

A.  W.  B ,  being  duly  sworn,  says  that  he  is  the  publisher  of 

the  ,  a  weekly  newspaper  printed  and  published  in  said  coun- 
ty, and  that  the  notice  hereto  annexed  was  published  in  said  paper 
for  weeks  successively,  in  the  numbers  and  of  the  dates  fol- 
lowing: No.  — ,  June  — ,  19 — ;  No.  — ,  June  — ,  19 — ;  No.  — ,  June 
— ,  19— ;   No.  — ,  July  — ,  19—.  A.  ^y.  B. 

Publisher. 

Subscribed  and  sworn  to,  etc. 

If  the  notices  are  posted  up  the  proof  thereof  may  be  made 
by  the  affidavit  of  the  person  who  put  them  up,  which  may 
be  as  follows : 


Proof  of  Posting  Notices 


State  of 


County  of  .  y 

A.  B.,  being  duly  sworn,  says  that  he  did  on  the  day  of 

-,  19 — ,  post  ten  copies  of  the  notice,  a  copy  of  which  is  hereto 


attached,  in  ten  public  places  in  said  county  of .  A.  B. 

Subscribed  and  sworn  to,  etc. 

§  308.  Sale,  Hov^  and  Where  Made. — All  public  sales  of 
real  estate  made  by  order  of  the  court  for  the  payment  of 
debts,  must  be  made  at  the  court  house  door  of  the  county  in 
which  the  real  estate  is  situated,  on  some  day  while  the  circuit, 
county  or  probate  court  is  in  session,  and  shall  be  conducted 
Kel.Mo.P.c..— 21 


322  SALE    OF    REAL    ESTATE,  ETC.  §  308 

openly  by  auction.*'^  If  the  sale  be  made  when  no  court  of 
record  is  in  session  the  deed  will  be  void."  But  in  cities  of 
100.000  inhabitants  or  more  the  sale  may  be  at  the  court  house 
door,  or  on  the  floor  of  the  real  estate  exchange  as  may  be 
directed  by  the  order  of  the  court.  If  the  real  estate  is  sold 
at  private  sale  it  cannot  be  sold  for  less  than  three-fourths  of 
its  appraised  value,  nor  can  the  executor  or  administrator  at 
public  or  private  sale,  directly  or  indirectly  become  the  pur- 
chaser thereof,  and  all  sales  not  made  in  accordance  with  the 
provisions  of  the  statute  are  null  and  void."-  Yet  the  admin- 
istrator, after  the  sale  has  been  regularly  and  formally  made 
through  the  proper  court  proceedings,  and  after  filing  an  affi- 
davit attached  to  the  report  of  sale  that  he  did  not  directly  or 
indirectly  purchase  said  real  estate  or  any  interest  therein,  can- 
not be  heard  to  attack  collaterally  the  validity  of  the  sale  on 
the  ground  that  he,  the  administrator,  was  the  real  purchaser, 
and  not  the  grantee  named  in  the  deed.  The  administrator  is, 
under  such  a  state  of  facts,  precluded  from  showing  that  the 
purchaser  named  in  the  deed  was  not  the  real  party  in  inter- 
est.''^ 

As  an  administrator's  sale  of  real  estate  under  an  order  of 
court  is  a  judicial  sale,  it  has  been  held  that  the  court  may, 
where  the  interests  of  the  estate  demand  it,  modify  an  order 
of  sale  previously  made,  and  may  in  a  proper  case  adjourn 
or  continue  the  sale  to  a  subsequent  time.''^*  Thus,  it  has  been 
held  that  a  renewal  order  for  the  sale  of  real  estate  to  pay 
debts  may  change  the  terms  of  the  sale  from  a  private  to  a 
public  sale  without  notice  to  the  heirs. "^  It  is  not  essential 
that  the  order  of  sale  itself  should  state  the  amount  of  money 
necessary  to  be  raised  in  the  sale  of  real  estate,  but  is  sufficient 
if  the  court  finds  in  the  order  that  the  personal  assets  are  not 
sufficient  to  pay  the  debts  due  and  owing  by  the  estate.  Ir- 
regularities arising  in  the  conduct  of  a  sale  of  real  estate  to 
pay  debts,  after  the  probate  court  has  once  acquired  jurisdic- 
tion and  made  a  valid  order  of  sale,  are  cured  by  an  order  of 
the  court  confirming  the  sale."® 

6  0  Ilev.  St.  lOOi),  §  1G9. 

61  Moble.v  V.  Nave,  67  Mo.  54G ;    Aiiii,'o  v.  Corby,  70  Mo.  257. 

6i:  Rev.  St.  lOOn,  §  170. 

63  I'eiirsou  V.  Murray.  2.';0  Mo.  162,  i:]0  S.  W.  21. 

64  Rhodes  V.  I'.ell,  2.",0  Mo.  13S,  130  S.  W.  465. 
6s  Rhodes  V.  Bell,  230  Mo.  138,  130  S.  W.  465. 

6  0  P.lickeusderffer  v.  Hanna,  231  Mo.  93,  132  S.  W.  678;  Rhodes 
V.  Bell,  230  Mo.  13S,  1.30  S.  W.  465. 


§  309  SALE    OF    REAL    ESTATE,   ETC.  3li3 

§  309.  Report  of  Sale. — Within  ten  days  after  the  sale, 
the  executor  or  achninistrator  shall  make  a  full  report  of  his 
proceedings,  with  the  certificate  of  appraisement  and  a  copy 
of  the  advertisement,  if  such  sale  is  made  at  public  sale,  which 
report  shall  be  verified  by  affidavit  staling  that  he  did  not,  di- 
rectly or  indirectly,  purchase  said  real  estate  or  any  part  there- 
of, or  any  interest  therein,  and  that  he  is  not  interested  in  the 
property  sold  except  as  stated  in  said  report.  Such  report  of 
sale  shall  be  and  remain  on  file  ten  days  before  being  acted 
upon  by  the  court." ^  Until  the  statute  was  amended  in  1909, 
it  was  provided  that  the  report  should  be  made  at  the  next 
term  of  the  court  after  the  sale. 

The  report  must  be  verified  by  affidavit,  stating  that  he  did 
not.  directly  or  indirectly  purchase  such  estate  or  any  part 
thereof,  or  any  interest  therein,  and  that  he  is  not  interested  in 
the  property  sold,  except  as  stated  in  the  report. 

Report  of  Sale 

In  the  Probate  Court  of County. 

In  the  JNIatter  of  the  Estate  of^ 

R.  R..  Deceased.  I  Report  of  Sale. 

J.  D.,  Adniinistnitor.  J 

Now  on  this  day  of  conies  .1.  D.,  administrator  of 

the  estate  of  R.  R..  deceased,  and  files  the  foUowinj:  report: 

That  in  pursuance  of  an  order  of  this  court  made  at  the  

term,  19 — ,  thereof,  he  did,  on  the  day  of  ,  19^,  be- 
tween the  hours  of o'clock  a.  m.  and o'clock  p.  m.,  at 

the  court  house  door  in  the of ,  in  said  county,  and  dur- 
ing the  session  of  the court  of  .said  county,  sell  at  public  ven- 
due the  real  estate  in  said  order  described,  to- wit:    (here  describe  it). 

to  A.  B.  for  the  sum  of  dollars,  which  was  the  highest  sum 

bid  for  the  same.  That  before  the  said  sale  he  caused  the  said 
premises  to  be  appraised  by  ,  and  .  three  dis- 
interested householders  of  said  county,  who  were  first  duly  sworn 
as  such  appraisers,  as  .-ippears  by  the  affidavit  and  certificate  of  ap- 
praisement herewith  returned :  and  also  caused  a  notice,  contaiiiiiig 
a  particular  description  of  the  estate  to  be  .sold,  and  stating  the  time, 
place  and  terms  of  sale,  to  be  published  for  four  weeks  prior  to  said 

sale,  in  the  ,  a  weekly  paper  published  in  the  city  of  . 

and  county  of .  in  the  state  of .  (If  the  notice  was  giv- 
en by  posters  state  the  facts,  as  appeal's  by  a  copy  of  the  notice 
and  affidavit  of  C.  D..  the  publisher  thereof,  herewith  filed.)  And 
the  said  A.  B..  having  fully  complied  with  the  terms  of  said  sale. 

and  paid  the  said  administrator  the  sum  of  dollars  in  cash. 

the  amount  of  his  .said  bid  (or  if  the  sale  is  on  payments,  describe 
the  notes,  etc.,  for  the  remainder  of  his  bid),  as  re«iuired  by  the  or- 

67  Rev.  St.  1909.  §  171. 


32 A  SALE    OF   REAL    ESTATE,  ETC.  §  309 

der  of  sale.  ITe  asks  that  said  sale  be  in  all  things  approved  and 
confirmed.  J.  D.,  Administrator. 

The  said  J.  D.  makes  oath  and  says  that  he  did  not  directly  or 
indirectly  purchase  snch  real  estate,  or  any  part  thereof,  or  any 
interest  therein,  and  that  he  is  not  interested  in  the  property  sold, 
except  as  stated  in  said  report.  J.  D.,  Administrator. 

Subscribed  and  sworn  to,  etc. 

In  the  I'robate  Court  of County,  Missouri.    Term,  19 — . 

State  of  Missouri,      | 
County  of  .  j 

Administrator's  Report  of  Private  Sale  of  Real  Estate. 
In  the  Matter  of  Estate  of  R.  R.,     |      j^^^    

deceased.     J.  D.,  Administrator,     j  ' 

Now  on  this day  of ,  19 — ,  comes  J.  D.,  administrator 

of  the  estate  of  R.  R.,  deceased,  and  respectfully  reports  to  this 
court  that  in  obedience  to  the  order  of  sale  made  by  this  court  on 

the  day  of ,  19 — ,  lie  did  on  the  — day  of  , 

19 — ,  and  within  ten  days  prior  to  the  date  upon  which  this  report 
is  filed  in  this  court,  sell  at  private  sale,  subject  to  the  approval  of 

the  court,  to  D.  J.  at  and  for  the  price  and  sum  of  dollars 

cash,  the  follomng  described  real  estate  situate  in  county, 

Missouri,  to-wit:  (Here  describe  real  estate.)  Said  administrator 
further  respectfully  shows  to  the  court  that  prior  to  making  said 
sale  said  real  estate  was  duly  appraised  by  A.  B.,  C.  D.  and  E.  F., 

three  disinterested  householders  of  said  county,  they  having 

been  first  duly  sworn,  as  appears  by  the  affidavit  of  appraisers  and 
their  certificate  of  appraisement  filed  herewith,  marked  Exhibit  A, 
and  that  said  appraisers  appraised  said  real  estate  at  dol- 
lars ;  and  J.  D.,  administrator,  further  certifies  that  said  real  estate 
was  sold,  as  above  stated,  for  more  than  three-fourths  of  its  ap- 
praised value. 

All  of  which  is  respectfully  submitted. 

,  Administrator. 

State  of  Missouri,     ] 

County  of .  j   ' " 

J.  D.,  being  duly  sworn,  upon  his  oath  says  that  he  did  not,  di- 
rectly or  indirectly,  purchase  said  real  estate  or  any  part  thereof,  or 
any  interest  therein,  and  that  he  is  not  interested  in  the  property 
sold  except  as  stated  in  said  report.  ■ 

Sworn  to  and  subscribed  before  me  this day  of ,  19 — . 


(Style  of  Office.) 

§  310.  Approval  of  Report  and  Deed. — If  the  report  and 
proceedings  are  not  approved  by  the  court  they  are  void ; 
and  if  for  any  cause  no  sale  be  made,  the  court  may  order 
a  new  sale,  upon  which  the  same  proceedings  must  be  had 
as  upon  the  original  order.**^    If  the  report  is  approved  the 

68  Rev.  St.  1909,  §  172;    Wolff  v.  Wohlien,  Z2  Mo.  124. 


§  310  SALE    OF   REAL    ESTATE,   ETC.  325 

sale  is  valid,  and  the  executor  or  administrator  must  ex- 
ecute, acknowlcdj,^'  and  deliver  to  the  purchaser  a  deed, 
referrini,^,  in  a])t  and  appropriate  terms,  to  the  order  of  sale 
and  the  court  by  which  it  was  made,  the  certificate  of  ap- 
praisement, the  advertisement,  the  time  and  place  of  sale, 
the  report  of  the  proceedings,  and  order  of  approval  thereof, 
by  the  court,  and  the  consideration,  and  conveyino^  to  the 
purchaser  all  the  right,  title  and  interest  which  the  deceased 
had  in  the  same."® 

The  order  confirming  the  sale,  and  for  a  deed  must  be  en- 
tered on  the  minutes  of  the  court,  and  the  judge  cannot  di- 
rectly or  indirectly  purchase  such  real  estate.  For  many 
years  under  the  statute  as  it  existed  prior  to  the  year  1909 
the  Supreme  Court  held  that  the  approval  of  a  sale  at  a 
term  dififerent  from  that  prescribed  by  the  statute  rendered 
the  sale  invalid.'"  It  now  holds  that  such  sales  are  only 
voidable.''^ 

Under  the  statute,  as  amended,  permitting  the  report  of 
sale  to  be  made  within  ten  days  after  the  actual  sale,  then 
to  remain  on  file  ten  days  before  being  approved  by  the 
court,  failure  to  apply  strictly  with  such  requirements  as  to 
time  would  render  the  sale  voidable. 

If  the  land  be  described  in  the  petition  and  appraisement 
the  failure  to  describe  it  in  the  order  will  not  invalidate  it.^" 
The  order  of  approval  must  be  entered  of  record."^  Yet  if 
it  appear  from  the  whole  record  that  the  sale  was  approved, 
though  no  such  order  be  found,  the  sale  will  be  upheld,  es- 
pecially in  a  collateral  proceeding."*  And  it  is  not  necessary 
to  the  validity  of  the  sale  that  the  lists  of  accounts,  etc., 
should  accompany  the  petition,' -"^  nor  that  the  record  should 
disclose  all  the  facts  authorizing  the  appointment  of  the  ad- 
ministrator,''*' nor  that  the  affidavit  of  the  appraisers  should 
be  filed,  if  the  certificate  of  appraisement  be  filed  with  the 

on  Rev.  St.  tOOO.  §  17.'!. 

ro  Speck  v.  Wohlien,  22  Mo.  310 ;  Strouse  v.  Drennan,  41  Mo.  2S9 ; 
Mitchell  V.  Bliss,  47  Mo.  35:5. 

TiMcVey  v.  McVey,  51  :Mo.  40(>  ;  Mnrniy  v.  Piirdy,  GO  Mo.  GUO; 
Sims  V.  Gray,  GO  Mo.  G13 ;    AVilkersoii  v.  Allen.  67  Mo.  502. 

7  2  Adams  v.  Ix'irriniore.  51  Mo.  I.'IO. 

73  Valle  V.  Fleniiii!;.  19  Mo.  457.  Gl  Am.  Dec.  5GG. 

74  Jones  V.  Manly.  58  Mo.  550:  Grayson  v.  Weddle.  G.".  :\Io.  523; 
Carey  v.  West.  1.39  Mo.  14G.  40  S.  W.  GGl. 

7 r,  Grayson  v.  Weddle,  G3  Mo.  523;  Smith  v.  Black,  231  Mo.  GSl, 
132  S.  W.  1129. 

T6  Johnson  v.  Beazley,  65  Mo.  250,  27  Am.  Rep.  276. 


326  SALE    OF   REAL    ESTATE,  ETC.  §  310 

report.''^  And  mistakes  as  to  dates  and  irregularities  in 
the  deed  may  be  corrected  by  the  original  papers  and  record 
of  the  proceedings.'^^  Every  presumption  will  be  indulged 
in  favor  of  the  judgment  of  the  court  and  the  regularity  of 
its  proceedings/"  But  if  the  description  of  the  land  sold 
is  so  uncertain  that  it  cannot  be  identified,  as  where  a  part 
of  a  larger  tract  is  sold  without  designating  what  part,  the 
sale  is  void.^"  So  a  sale  of  land  not  described  in  the  order 
of  sale  is  void,  and  a  sale  to  a  co-administrator  is  also  void.*^ 

Order  Confiriiiiiig  Sale 

lu  the  Matter  of  R.  R.,  deceased. 

Now  comes  J.  D.,  aduiimstrator  of  the  estate  of  R.  R.,  deceased, 
and  the  court  takes  up  the  report  of  sale  of  real  estate  belonging 

to  said  estate  filed  in  this  court  by  said  administrator  on  the 

day  of ,  19 — ,  by  which  it  appears  that  he  did  on  the  

day  of  ,  19 — ,  within  ten  days  prior  to  the  filing  of  said  re- 
port in  obedience  to  the  order  of  this  court  made  at  the term, 

19 — ,  thereof,  sell  at  public  vendue  (or  private  sale)  to  D.  J.  for  the 

sum  of dollars,  the  real  estate  in  said  order  of  court  and  in 

such  report  particularly  described,  to-wit:  (Here  describe  the  land) ; 
and  it  appearing  by  the  affidavit  and  certificate  of  appraisement  of 

A.  B.,  C.  D.  and  E.  F..  three  disinterested  householders  of  said  

county,  who  were  duly  appointed  and  qualified  as  appraisers  to  ap- 
praise the  said  real  estate  that  said  real  estate  was  appraised  by 

them  at  the  sum  of dollars ;    and  it  further  appearing  to  the 

court   that  said  administrator  on  the  day   of  ,    19 — , 

sold  subject  to  the  approval  of  the  court,  all  the  right,  title  and  in- 
terest of  R.  R.,  deceased,  in  and  to  said  real  estate,  at  private  sale 

(or  public  vendue),  at  and  for  the  price  and  sum  of  dollars, 

the  same  being  more  than  three-fourths  of  the  appraised  value  of 
said  real  estate;  and  it  further  appearing  to  the  satisfaction  of  said 
court  that  said  sale  was  legally  and  fairly  conducted  pursuant  to 
the  order  of  the  court  and  in  accordance  with  the  statutes  in  such 
case  made  and  provided:  It  is  therefore  ordered  that  the  said  sale 
be  and  the  same  is  hereby  approved  and  confirmed  by  the  court,  and 
the  said  administrator  is  ordered  to  execute,  acknowledge  and  de- 
liver to  said  D.  J.  a  deed  in  due  form  of  law,  conveying  to  the  said 
D.  J.,  his  heirs  and  assigns,  all  the  right,  title  and  interest  which 
the  deceased  had  in  the  said  real  estate  at  the  time  of  his  death. 

7  7  Moore  v.  Wingate,  53  Mo.  898. 

7  8  Jones  V.  Carter.  56  Mo.  40.3;  Moore  v.  Wingate,  53  Mo.  398; 
.Tones  v.  Manly,  58  Mo.  559;  Agan  v.  Shannon,  103  Mo.  6G1,  15  S. 
W.  757. 

7n  Rowden  v.  Brown,  91  Mo.  429,  4  S.  W.  129;  Becker  v,  Rardin, 
107  Mo.  Ill,  17  S.  W.  892;  Sherwood  v.  Baker,  105  Mo.  472,  16  S. 
W.  938,  24  Am.  St.  Rep.  .399;  Bray  v.  Adams,  114  Mo.  486,  21  S. 
W.  853 ;    Rhodes  v.  Bell,  2.30  Mo.  138,  130  S.  W.  465. 

8  0  Jones  v.  Carter,  56  Mo.  403. 
81  Greene  v.  Holt,  76  Mo.  677. 


§  310  SALE    OF    REAL    ESTATE,   ETC.  327 

Fonii  of  Administrator's  Deed 
To  All  to  Whom  These  Presents  shall  Come,   J.  D.,  Afliniiiistrator, 
Sends  Greetinj,': 

Whereas,  the  prol)ate  court  of  county,  Missouri,  by  its  or- 
der of  sale-made  at  its term.  19—,  did  order  the  nndersi;,aied, 

administrator  of  the  estate  of  K.  U..  deceased,  to  sell  at  private  sale, 
for  the  purpose  of  paying  the  debts  of  said  estate,  the  real  estate  in 
said  order  and  in  this  deed  described ; 

Whereas,  in  obedience  to  said  order,  I  did  sell  at  private  sale  on 

the day  of ,  10—,  the  real  estate  in  said  order  and  in 

this  deed  hereinafter  descril)ed,  to  D.  J.,  of  county,  Missouri, 

for  the  sum  of dollars  in  cash,  first  having  had  the  said  real 

estate  duly  appraised  by  A.  B.,  C.  D.  and  E.  F.,  three  disinterested 

householders   of  county,    as   appears   by    their   affidavit   and 

certificate  of  appraisement  duly  returned  with  my  report  to  said 
court,  said  sale  bein::  for  more  than  three-fourths  of  the  appraised 
value  of  said  real  estate; 

And  whereas,   on  the  day  of  ,  10 — ,   at  the  

term.  10—,  of  said  probate  court  of county,  Missouri,  the  same 

being  within  ten  days  after  said  sale.  I,  said  administrator,  did 
make  a  full  report  of  my  proceedings  under  said  order  of  sale  to 
said  court,  and  said  report  after  remaining  on  file  in  said  court  ten 

days  was  on  the day  of  ,  19—,  duly  approved  by  said 

probate  court,  and  the  said  sale  is  therefore  valid  and  binding  upon 
all  concerned: 

Now,  therefore,  in  consideration  of  the  premises  and  the  said  sum 

of dollars  to  me  in  hand  paid  as  aforesaid  by  the  said  D.  J., 

of  county.  Missouri,  I,  J.  D.,  administrator  of  the  estate  of 

R.  R.,  deceased,  do  bargain,  sell  and  convey  unto  the  said  D.  J.,  his 
heirs  and  assigns,  all  the  right,  title  and  interest  of  the  said  R.  K.. 
deceased,  at  the  time  of  his  death,  in  and  to  the  following  described 

real  estate  lying,  being  and  situate  in  the  county  of  ,  state 

of  Missouri,  to-wit:    (Set  out  the  description  in  the  order.) 

To  have  and  to  hold  the  same  unto  the  said  D.  J.,  his  heirs  and 
assigns,  forever,  as  fully  as  I,  the  said  J.  D.,  administrator,  can  or 
ought  to  convey  the  same. 

In  Witness  Whereof,  I,  the  said  J.  D..  administrator,  hereto  sign 
my  name  and  affix  my  seal  this  day  of ,  A.  D.  10—. 

Administrator  of  the  Estate  of  R.  R.,  Deceased. 
State  of  Missouri,      |  ^^ 

County  of  •  \ 

Ou  this  day  of  ,  A.  D.  19—,  before  me,  the  under- 
signed, a  notary  public,  within  and  for  said  county  and  state,  per- 
sonally appeared  J.  D..  administrator  of  the  estate  of  R.  R..  deceased, 
to  me  known  to  be  the  person  described  in  and  who  executed  the 
foregoing  instrument,  and  acknowledged  that  he  exec-uted  the  same 
as  his  free  act  and  deed  as  such  administrator. 

In  Testimony  Whereof.  I  have  hereunto  set  my  hand  and  affixed 

my  notarial  seal  at  my  office  in  ,  Missouri,  the  day  and  year 

in  this  certificate  first  aforesaid. 

My  conunission  expires  day  • ,  19—. 

(Seal.)  Notary  Public. 


328  SALE    OF   REAL,    ESTATE,  ETC.  §  311 

§  311.  In  Case  of  Death,  or  Removal,  the  acting  execu- 
tor or  administrator  may  make  the  deed.  If  the  authority 
of  the  executor  or  administrator  ceases  from  any  cause 
after  the  sale  of  any  real  estate  by  him  and  before  executing 
a  deed  therefor,  the  purchaser,  his  heirs,  assigns  or  grantees, 
may  petition  the  court,  stating  the  facts ;  ■  and  the  court, 
if  satisfied  that  the  purchase  money  has  been  paid,  will 
order  the  then  acting  executor  or  administrator  or  if  after 
final  settlement,  the  sheriff  of  said  county,  to  execute  and 
acknowledge  to  the  purchaser,  his  heirs,  assigns  or  grantors, 
a  deed,  referring  to  the  petition  and  order  of  court,  with 
the  other  recitals  required  in  an  administrator's  deed.  The 
deed  must  be  executed  accordingly,  and  will  have  effect 
to  all  intents  and  purposes,  as  if  made  by  the  executor  or 
administrator  who  made  the  sale.^-  The  court  cannot  ap- 
point an  administrator  de  bonis  non  for  the  sole  purpose 
of  executing  such  a  deed.^^  The  administrator  may  make 
a  deed  after  final  settlement,  before  being  discharged,  in 
completion  of  a  sale  made  by  him  and  approved  by  the 
court."*  But  the  court  has  no  jurisdiction  years  after  the 
final  settlement  to  make  an  order  approving  a  second  re- 
port of  sale,  and  a  deed  made  under  such  order  would  pass 
no  title. ®^ 

§  312.  Effect  of  Deed. — An  administrator's  sale  and  pro- 
ceedings under  the  order  of  the  court  must  conform  to  the 
requirements  of  the  statute.  The  land  must  be  appraised, 
and  the  sale  reported  within  ten  days  after  it  is  made,  else 
the  sale  will  be  irregular.  It  will  be  sufficient  if  the  approval 
can  be  gathered  from  the  whole  record.  The  sale  passes  no 
title  unless  it  is  approved  and  a  deed  is  executed.**' 

It  is  the  deed  that  conveys  the  estate ;  and  under  the  stat- 
ute, it  conveys  to  the  purchaser  all  the  right,  title  and  inter- 
est which  the  deceased  had  in  the  land  at  the  time  of  his 
death,  discharged  from  liability  for  his  debts,  and  it  is  evi- 
dence of  the  facts  therein  recited.**^ 

82  Rev.  St.  1909,  §  175. 

83  Carey  v.  West,  139  Mo.  146,  40  S.  W.  G61. 

84Rugie  V.  Webster,  5.5  Mo.  246;  Garner  v.  Tucker,  61  Mo.  427; 
Wilkerson  v.  Allen,  67  Mo.  502. 

85  Garner  v.  Tucker,  61  Mo.  427. 

se  Carey  v.  West,  139  Mo.  146,  40  S.  W.  661. 

8  7  Rev.  St.  1909,  §  176;  Howell  v.  Jump,  140  Mo.  441,  41  S.  W. 
976 :  Bray  v.  Adams,  114  Mo.  486,  21  S.  W.  853 ;  .Tolmson  v.  Beazley, 
65  Mo.  250,  27  Am.  Ilep.  276;    Hughes  v.  McDivitt,  102  Mo.  77,  14 


§  313  SALE   OF   REAL   ESTATE,   ETC.  329 

The  filinj?  of  the  petition  and  giving  the  notice  required 
invest  the  court  with  jurisdiction,  and  when  jurisdiction  is 
thus  acquired  irreji^ularities  or  defects  in  the  proceedings 
will  not  affect  the  deed.**  And  a  deed  valid  on  its  face  will 
bar  ejectment.*"*  The  rule  caveat  emptor  applies  to  one 
who  buys  at  an  administrator's  sale  with  knowledge  of  all 
the  facts,  and  after  the  sale  has  been  apjjroved  and  a  deed 
made  he  has  no  remedy,  though  the  propert}'  did  not  belong 
to  the  estate,  therefore  he  should  investigate  the  title  Ijcfore 
buying."'* 

§  313.  Court  may  order  Sale  without  Petition. —  If  upon 
the  settlement  of  the  accounts  of  any  executor  or  adminis- 
trator, it  appears  that  the  personal  estate  is  not  sufficient 
to  pay  the  debts  and  legacies,  the  court  may  make  such 
order  as  it  may  think  necessary  for  the  sale  of  the  real  es- 
tate for  that  purpose,  and  the  sale  must  be  conducted  and 
the  same  proceedings  had  in  relation  thereto  as  is  provided 
by  law  in  relation  to  the  sale  of  real  estate  for  the  payment 
of  debts,  upon  the  petition  of  the  executor  or  administrator, 
creditor  or  other  persons  interested."^  This  provision  of 
the  statute  dispenses  with  the  necessity  of  a  petition,  the 
report  of  the  accounts  and  condition  of  the  estate  by  the 
executor  or  administrator  standing  in  the  place  of  a  petition 
and  accompanying  exhil)its.  But  the  court  should  order 
notice  to  be  given  of  its  intention  to  make  the  order  of 
sale;  and  the  appraisement,  notice  of  sale,  manner  of  sale 
and  report  and  confirmation,  and  execution  of  the  deed  must 
conform  in  all  respects  to  the  law  governing  sales  ordered 
on  petition  of  the  executor  or  administrator.  Though  it  has 
been  held  that  no  petition,  exhibit,  lists,  inventory  or  notice, 
is  required  under  this  statute,  upon  the  theory  that  as  the 
law  fixes  the  time  when  the  settlement  should  be  made  and 
that  all  persons  interested  in  the  estate  are  supposed  to 
know  when  that  is,  and  that  the  court  may  be  called  upon 


S.  W.  G60.  15  S.  W.  756;  Thompson  v.  Pinnell,  237  Mo.  u4.j,  141  S. 
W.  605. 

8 s  Carney  v.  Havens,  23  Kan.  SS;  Bryan  v.  Bander.  23  Kan.  95; 
Graudstaff  v.  Brown,  23  Kan.  181;  Carey  v.  West,  139  Mo.  146,  40 
S.  W.  661. 

89  Young  V.  Walker,  26  Kan.  242;    Newlaud  v.  Baker.  26  Kan.  .341. 

BO  Ileadriek  v.  Yoiiut.  22  Kan.  344;  Foley  v.  Bouhvare.  S6  Mo. 
App.  674:    Throckmorton  v.  rence.  121  Mo.  50,  25  S.  W.  843. 

91  Rev.  St.  1909,  §  174. 


330  SALE    OF    REAL    ESTATE,   ETC.  §  314 

to  make  such  order  of  sale  at  that  time,  and  must  take  no- 
tice accordingly.^^ 

§  314.  Lands  may  be  Divided  into  Village  or  Town 
Lots. — Whenever,  in  the  opinion  of  the  court,  it  will  be  to 
the  interest  of  the  estate  to  divide  any  lands  belonging  to 
the  estate  into  village  or  town  lots,  the  court  may,  upon  ap- 
plication of  the  executor  or  administrator,  make  an  order 
causing  the  same  to  be  done;  and  thereupon  the  executor 
or  administrator  must  cause  a  plat  of  the  lands  to  be  made 
according  to  the  provisions  of  the  statute  concerning  the 
plats  of  towns  and  villages,  and  submit  the  same  to  the 
court  for  its  approval.  Upon  the  approval  of  the  plat  by  the 
court,  a  copy  of  the  cfrder  approving  the  same,  properly  cer- 
tified, must  be  endorsed  thereon ;  and  the  plat  so  endorsed 
must  be  deposited  and  recorded  as  authorized  by  law  in 
other  cases. ''^ 

But  where  the  will  authorized  the  executor  to  sell,  lease, 
convey  or  otherwise  dispose  of  the  real  estate,  it  was  held 
that  he  could  not  change  the  character  of  the  estate  and 
convert  it  into  a  corporation.*** 

An  administrator  cannot  dedicate  land  of  the  estate  to 
public  use,  unless  he  be  authorized  to  do  so  by  a  will  or 
decree  of  court. °^ 

§  315.  Personal  Estate  may  be  Reserved  and  the  Real 
Estate  Sold. — If  the  executor  or  administrator,  or  other  per- 
son interested  in  any  estate,  file  a  petition  setting  forth  the 
facts,  and  describing  the  real  and  personal  estate,  and  pray- 
ing that  the,  personal  estate  may  be  reserved  and  real  estate 
be  sold  for  the  payment  of  debts,  the  same  steps  shall  be 
taken,  and  the  same  proceedings  and  publications  had,  as 
directed  in  other  cases  upon  a  petition  to  sell  real  estate 
for  the  payment  of  debts ;  and  the  court  may  order  the 
whole  or  any  part  of  the  personal  estate  to  be  reserved,  and 
the  real  estate,  or  any  part  of  it,  to  be  sold  at  public  or  private 
sale.^"  The  personal  estate  is  the  primary  fund  for  the  pay- 
ment of  debts,  but  the  testator  may  direct  the  real  estate 

92  Pa  tee  v.  Mowry,  59  Mo.  161;  Teverbaugh  v.  Hawkins,  82  Mo. 
180. 

9  3  Rev.  St.  1009,  §  186. 

94  Garesche  v.  Levering  Inv.  Co.,  146  Mo.  4.30,  48  S.  W.  053,  40  L. 
R.  A.  232. 

9  5  Kaime  v.  Harty,  73  Mo.  310.  OQ  Rev.  St.  1909,  §  105. 


§  315  SALE    OF    REAL   ESTATE,   ETC.  331 

to  be  sold  and  applied  to  that  purpose.  Even  in  a  case 
when  a  testator  by  his  will  directed  that  his  personal  estate 
be  first  applied  to  the  payment  of  his  debts,  it  was  early 
held  in  Missouri  that  a  sale  under  this  section  reserving  the 
personal  estate  and  selling  real  estate  was  not  subject  to 
collateral  attack.  Sales  under  this  section  should  be  made  as 
in  other  cases  asking  for  the  sale  of  real  estate  to  pay  debts  ; 
the  same  statutory  '■'''  steps  as  to  petition,  publication  and 
service  of  notice,  order  report  and  approval  of  sale  being 
required  to  support  the  administrator's  deed. 

Petition  for  Sale  of  Real  Estate,  Reserving  Personal  Estate 

from  Sale 

In  the  Probate  Court  of County,  State  of  Missouri. 

Term,  19—. 

In  the  :Matter  of  the  Estate  "1 

of  R.  R.,  deceased,  I  No.  . 

J.  D.,  administrator.  J 

Now  comes  J.  D.,  administrator  of  the  estate  of  R.  R.,  deceased, 
who  died  intestate  leaving  as  his  lieirs  at  law  S.  R.,  his  widow,  and 
A.  R.,  age  ten  (10)  years,  and  J.  R.,  age  seven  (7)  years,  his  children, 
and  shows  to  the  court  that  the  said  R.  R.  at  the  time  of  his  death 
was  the  owner  of  a  large  amount  of  personal  property,  consisting  of 
horses,  cattle,  farm  implements,  stocks  and  bonds  (describe  prop- 
erty), all  of  a  value  of  dollars,  the  list  of  which  is  hereto 

attached  marked  Exhibit  A ;  that  said  stocks  and  bonds  are  pro- 
ductive of  income,  yielding  dividends  of  per  cent,  and  said 

other  personal  property  is  essential  to  the  proper  care  and  manage- 
ment of  the  farm  and  homestead  upon  which  the  family  and  heirs  of 
the  said  R.  R.  now  live;    that  said  R.  R.  died  seized  and  possessed 

of  the  following  real  estate,  situate  in  the  county  of ,  and  state 

of  Missouri:    (Here  desci-ibe  real  estate);    said  real  estate  being  of 

the  value  of dollars.     Your  petitioner  attaches  hereto  a  true 

account  of  his  administration  of  this  estate  to  the  date  of  the  filing 
of  this  petition,  the  same  being  marked  Exhibit  B,  and  further  shows 
to  the  court  that   said  estate  is  largely  indebted,   demands  to  the 

amount  of dollars  having  been  proven  up  and  allowed  against 

said  estate  and  now  remj;ining  unpaid,  a  list  of  which  is  hereto  at- 
tached marked  Exhibit  C.  and  that  there  is  no  money  or  funds  in 
the  hands  of  the  administrator  or  available  for  the  payment  of  said 
indebtedness,  aud  it  will  be  and  is  necessary  to  sell  either  the  said 
personal  property  or  said  real  estate  or  some  part  thereof  to  pay 
said  indebtedness;  that  it  would  be  to  the  advantage  of  said  estiite 
and  for  the  best  interest  of  all  persons  interested  therein  to  reserve 
said  personal  estate  from  sale  and  let  it  be  disbursed  and  distributed 
among  the  parties  entitled  thereto;  and  that  the  following  real  es- 
tate, to-wit:  (Here  describe  the  tract  asked  to  be  sold)  be  sold  to 
raise  funds  with   which  to  pay  said  indebtedness;    that  said  last 

9  7  Overton  v.  Johnson,  17  Mo.  442. 


332  SALE    OF   REAL    ESTATE,  ETC.  §  315 

described  tract  of  land  is  nonproductive  and  the  buildings  tliercou 
are  out  of  repair,  beconiin^r  dilapidated  and  depreciating  in  value; 
that  it  will  require  an  outlay  and  expenditure  of  a  considerable  sum 
of  money  to  repair  the  same  and  malve  it  tenantable  and  productive 
(state  the  facts) ;  that  said  tract  could  be  sold  to  advantage  in  its 
present  condition. 

AVherefore.  your  petitioner  prays  the  court  to  order  and  direct  that 
said  personal  estate  be  reserved  from  .sale  and  that  said  last  de- 
scribed tract  of  real  estate  be  sold  by  your  petitioner,  the  admin- 
istrator of  the  said  estate,  to  pay  the  debts  of  said  estate. 

J.  D.,  Administrator. 
State  of  Missouri,      | 

County  of  .  j 

The  said  J.  D.,  administrator  of  the  estate  of  R.  R.,  deceased,  be- 
ing duly  sworn,  upon  his  oath  says  that  the  above  and  foregoing  pe- 
tition and  exhibits,  lists  and  accounts  thereto  annexed  are  true  to 
tlie  best  of  his  information,  knowledge  and  belief.  J.  D. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — . 

J.  R., 
(Style  of  Ottice.) 

§  316.  When  the  Real  Estate  Sold  is  Bound  by  the  Lien 
of  a  Judgment  or  Attachment. — If  the  real  estate  of  the  de- 
ceased is  bound  by  the  lien  of  a  judgment  or  attachment, 
or  of  several  judgments  or  attachments,  or  both,  the  facts 
must  be  stated  in  the  petition  to  sell,  and  the  dates  and 
amounts  of  the  judgments,  and  the  dates  of  serving,  and  the 
amounts  claimed  by  the  attachment,  and  the  name  or  names 
of  the  person  or  persons  in  whose  favor  they  were  rendered, 
or  are  prosecuted  must  be  set  forth  in  the  petition.^** 

The  proceeds  of  the  sale  in  such  case  must  be  applied  as 
follows : 

1.  To  the  payment  of  the  judgment  or  attachment. 

2.  If  there  are  several  such  liens,  to  their  payment  ac- 
cording to  their  priority. 

3.  If  such  liens  are  of  even  date,  and  the  proceeds  of 
the  sale  are  not  sufficient  to  pay  the  whole,  to  their  pay- 
ment in  proportion  to  their  respective  amounts.  If,  in  any 
case,  there  is  a  surplus  after  paying  the  lien  or  liens  it  be- 
comes assets  in  the  hands  of  the  executor  or  administrator, 
to  be  administered  according  to  law."® 

§  317.  Same — When  the  Real  Estate  of  the  Deceased 
Bound  by  the  Lien  of  Several  Judgments  or  attachments, 

98  Rev.  St.  1909,  §§  156,  157;  State,  to  Use  of  Lovell,  v.  Todd, 
57  Mo.  217 ;    Darr  v.  Thomas.  127  Mo.  App.  1,  100  S.  W.  95. 

99  Rev.  St.  1909,  §§  158,  159;  Peters  v.  Holliday,  40  Mo.  514; 
Bassett  v.  EUiotfs  Adm"r,  7S  Mo.  525. 


§  317  SALE    OF    REAL    ESTATE,   ETC.  333 

has  been  sold  on  a  junior  judgment,  the  executor  or  admin- 
istrator, must  state  in  his  petition  tlie  fact  of  such  sale,  the 
name  of  the  plaintiff  in  such  junior  judgment,  the  name  of 
the  purchaser,  the  dates  and  amounts  of  the  several  judg- 
ments and  attachments,  and  the  names  of  the  persons  in 
whose  favor  such  several  judgments  were  rendered,  or  such 
attachments  are  prosecuted.^*"'  The  court  will  thereupon 
order  that  the  plaintitT  in  the  judgment  under  which  the 
real  estate  was  sold,  and  the  purchaser  thereof,  shall  be  noti- 
fied of  the  filing  of  the  petition,  and  that,  unless  good  cause 
to  the  contrary  be  shown,  on  the  first  day  of  the  next  term, 
an  order  will  be  made  for  the  sale  of  the  whole,  or  so  much 
of  such  real  estate  as  will  be  sufficient'  to  pay  the  prior  judg- 
ments or  attachments.^"^  Such  notice  must  be  published  as 
other  notices  are  required  to  be  published,  in  case  of  peti- 
tions for  the  sale  of  real  estate  in  other  cases  by  executors 
or  administrators.  The  purchaser  of  such  real  estate  will 
have  the  privilege  of  paying  the  prior  judgments  at  any 
time  within  six  months  from  and  including  the  first  day  of 
the  term  of  the  court  at  which  he  is  notified  to  appear ;  or, 
in  case  of  attachments,  within  six  months  after  any  judg- 
ment rendered  upon  the  attachment  shall  be  allowed  and 
classed  as  provided  by  law.^''^  But  if  the  purchaser  fails 
to  pay  such  prior  judgment  or  judgments  upon  prior  attach- 
ments, or  both,  within  the  time  prescribed,  the  real  estate 
must  be  sold,  free  from  the  incumbrance  of  the  title  derived 
from  the  sale  under  the  junior  judgment,  and  the  proceeds 
of  the  sale  must  be  disposed  of  according  to  the  provisions 
of  the  law  applicable  to  the  facts  of  the  case;  i.  e.,  to  the 
payment  of  such  judgments  and  liens  in  the  order  of  their 
priority,  or  if  the  liens  are  of  even  date,  in  proportion  to 
their  amounts,  and  the  surplus,  if  any  should  be  paid  to  the 
purchaser  under  the  junior  judgment. ^''^ 

The  object  of  this  statute  seems  to  be  to  compel  the  pur- 
chaser of  land  of  the  deceased  at  the  sale  on  a  junior  judg- 
ment to  pay  off  all  prior  judgments  which  were  liens  on  the 
land  and  relieve  the  estate  from  their  payment.  This  pro- 
ceeds upon  the  supposition  that  the  land  was  sold  and 
bought  with  knowledge  of,  and  subject  to  the  prior  liens, 
and  its  real  value  is  equal  to  the  whole  amount  of  the  liens. 
This  may  not  be  true  in  every  instance.  The  purchaser 
may  have  paid  the  full  value  of  the  land  knowing  that  the 

100  Rev.  St.  1909,  §  160.     102  Rev.  St.  1909,  §§  102,  163. 

101  Rev.  Sr.  1909.  §  161.      103  Rev.  St.  1009.  §  164. 


334  SALE    OF   REAL    ESTATE,   ETC.  §  318 

deceased  had  other  lands  and  property  out  of  which  the 
prior  Hens  could  be  made.  In  such  a  case  it  would  not  be 
right  to  compel  him  to  pay  prior  liens  or  take  the  land  away 
from  him  and  cause  him  to  lose  the  money  paid  for  the 
land.  Should  the  statute  be  strictly  followed  such  might, 
in  some  cases,  be  the  result.  Indeed  it  has  been  held  that, 
where  a  claim  secured  by  a  deed  of  trust  on  land  was  al- 
lowed against  the  estate,  and  the  land  sold  on  petition  to 
pay  debts,  including  the  claim  so  secured,  the  sale  did  not 
release  the  land  from  the  lien  of  the  deed  of  trust,  and  the 
administrator  having  paid  the  claim  out  of  the  general  as- 
sets, was  allowed  to  recover  it  out  of  the  land  in  the  hands 
of  the  purchaser  at  the  administrator's  sale.^°*  Under  this 
proceeding  the  creditor  secures  the  advantage  of  his  lien 
in  the  order  of  priority  without  regard  to  the  order  of  al- 
lowance and  classification. ^*^^ 

§  318.  Sale  of  Leasehold  Interests. — The  disposition  of 
leasehold  estates  has  been  referred  to  heretofore  at  some 
length  in  Chapter  XVI.  Such  an  interest,  irrespective  of  its 
duration,  was  treated  at  common  law  as  personal  property 
and  has  not  been  converted  into  real  estate  by  Missouri 
statutes.^ "'^  It  passes  to  the  administrator  or  executor  on 
the  death  of  the  lessee  or  tenant.  Yet,  as  our  statutes  de- 
clare that  "every  lease  upon  lands  for  any  unexpired  term 
of  three  years  or  more  shall  be  subject  to  execution  and 
sale  as  real  property,"  an  administrator  or  executor,  in 
selling  a  leasehold  interest  having  an  unexpired  term  of 
three  years  or  more,  must  proceed  as  in  the  case  of  the  sale 
of  real  estate  for  the  payment  of  debts.  The  language  of 
this  statute,  although  it  is  not  directly  a  part  of  the  Ad- 
ministration Act,  has  been  held  to  be  broad  enough  to  con- 
template all  judicial  sales. ^°^  So,  in  order  to  give  validity 
to  the  sale  of  a  leasehold  interest  having  an  unexpired  term 
of  three  years  or  more,  the  same  statutory  steps  required 
by  the  Administration  Act  for  the  sale  of  real  estate,  and 
set  forth  in  this  chapter  at  length,  must  be  taken. 

104  Welton  V.  IFull,  50  Mo.  29G;  Jackson  v.  JMagruder,  51  Mo.  55; 
Ross  V.  Julian,  70  Mo.  209 ;    Greenwell  v.  Heritage,  71  Mo.  459. 

lor,  Peters  v.  Ilolliday,  40  Mo.  544;  Bassett  v.  Elliott's  Adm'r,  78 
Mo.  525. 

100  2  Blackstone,  Com.  312;  2  Kent,  Com.  342;  Orchard  v.  Wright- 
Dalton-Bell  Anchor  Store  Co.,  225  Mo.  414,  125  S.  W.  480,  20  Ann. 
Cas.  1072. 

107  Orchard  v.  Wriglit-Dalton-Bell  Anchor  Store  Co.,  225  Mo.  414, 
125  S.  W.  480,  20  Ann.  Cas.  1072. 


§  319  PAYMENT   OF   DEBTS,  ETC.  335 

CHAPTER  XXV 

OF  THE  PAYMENT  OF  DEI'.TS  AND  LEGACIES 

§  319.  Payment  of  (l('l)(s.  in  what  ord.-r. 

320.  Same— Receipts  sliould  l)e  taken,  etc. 

321.  Payment  of  lesacies — Different  l<ind.s  of  legacies. 

322.  Wlien  a  legacy  will  lapse. 

323.  Assent  of  executor  to  legacy. 

324.  Cunmlative  legacies. 

325.  In  lieu  of  dower. 

326.  Legacies  to  creditors  in  satisfaction  of  debts. 

327.  Legacy  by  creditor  to  his  debtor. 

328.  Interest  on  legacies. 

329.  Legatee  entitled  to  increase,  etc. 

330.  Time  of  payment  of  legacy. 

331.  Debts  should  be  paid  before  legacies. 

332.  Refunding  bond  and  receipts,  etc. 

333.  Proceeding  against  executor,  etc.,  for  failing  to  pay  legacy. 

§  319.  Payment  of  Debts— In  What  Order.— All  de- 
mands against  an  estate  must  be  paid  in  the  order  in  which 
they  are  classed ;  and  no  demand  of  one  class  must  be  paid 
until  all  demands  of  a  previous  class  are  satisfied ;  and  if 
there  are  not  sufficient  assets  to  pay  all  of  one  class,  such 
demands  must  be  paid  in  proportion  to  their  amounts. 
Notes  and  bonds  of  the  estate  may  be  assigned  by  the  exec- 
utor or  administrator  to  creditors,  legatees  and  distributees 
in  discharge  of  an  equal  amount  of  their  claims.^  If  a  claim 
has  been  assigned  to  a  wrong  class,  or  a  mistake  has  been 
made  in  the  entry  allowing  the  demand,  the  error  may  be 
corrected  by  a  nunc  pro  tunc  entry  in  the  probate  court. ^ 
And  an  allowance  may  be  set  aside  within  four  months  on 
application  and  affidavit  in  the  probate  court, ^  and  if  it  has 
been  obtained  by  fraud,  it  may  be  set  aside  by  a  proceeding 
in  a  court  of  equity.'*  The  allowance  and  classification  of  a 
demand  against  an  estate  is  a  judgment  of  which  the  execu- 

1  Rev.  St.  lOOl"),  §  21G:  In  re  McCune's  Estate,  7G  Mo.  200;  Weil 
V.  Jones,  70  Mo.  500;  Marshall  v.  Meyers.  96  Mo.  App.  643,  70  S. 
W.  027 ;    Stagg  v.  Linnenfelser,  59  Mo.  -.VM]. 

2  .lillett  V.  Union  Nat.  Bank,  56  M,o.  304;  Ritchey  v.  Withers,  72 
Mo.  556. 

3  Ante,  §  284. 

4  Mayberry  v.  McClurg.  51  Mo.  256;  Stewart  v.  Caldwell,  54  Mo. 
536  ;    Smith  V.  Sims,  77  Mo.  260. 


336  PAYMENT   OF   DEBTS,  ETC.  §  319 

tor  or  administrator  is  bound  to  take  notice;  and  it  must  be 
respected  as  such,  while  it  remains  in  force. ^ 

If,  therefore,  he  pays  a  debt  of  a  lower  rank  first  and  thus 
exhausts  the  assets,  he  will  be  held  liable  to  pay  out  of  his 
own  estate  such  preferred  demands,  as  shall  be  thus  de- 
feated.*^ So  if  he  pays  the  whole  of  a  debt  when  the  assets 
admit  only  a  proportionate  part  of  it  to  be  satisfied,  and 
thus  diminishes  the  ratable  portion  of  other  creditors,  he 
would  be  answerable  out  of  his  own  estate  to  make  good 
the  loss  occasioned  by  such  erroneous  payment. 

He  is  not  bound  to  pay  debts  of  the  fifth,  or  any  class, 
until  after  the  time  given  by  the  statute  in  which  to  file 
such  demands  has  expired,  unless  the  estate  is  clearly  sol- 
vent, or  he  is  ordered  by  the  court  to  do  so ;  '^  hence  in  the 
settlement  of  estates,  when  the  deceased  has  been  engaged 
in  extensive  business  in  his  lifetime,  and  his  solvency  is 
questionable,  it  would  be  hazardous  to  the  executor  or  ad- 
ministrator to  pay  any  debt  of  the  deceased  in  whole  or  in 
part  until  the  claims  are  all  in,  or  the  time  for  filing  them 
has  expired. 

§  320.  Same — Taking  Receipt. — When  a  debt  is  paid 
the  executor  should  be  careful  to  take  a  receipt  therefor  of 
the  creditor,  to  be  used  as  a  voucher  in  his  settlements  with 
the  court. 

Receipt  for  a  Demand 

Received  of  E.  F.,  administrator  of  the  estate  of  R.  R.,  deceased, 

the  sum  of  dollars  in  full  payment  (or  for  a  pro  rata  share 

of  fifth  class  of  claims),  of  the  claim  allowed  in  my  favor  against 
said  estate  by  the court,  and  assigned  to  the  fifth  class. 

Dated  ,  19—.  C D . 

§  321.  Payment  of  Legacies — Different  Kinds  of  Lega- 
cies.— The  creditors  of  a  deceased  person  have  a  stronger 
claim  on  the  property  of  the  deceased  than  his  legatees, 
hence,  debts  must  be  paid  before  legacies.  But  after  the 
payment  of  all  the  debts  the  next  duty  of  the  executor  is  to 
pay  the  legacies  bequeathed  by  the  testator.  And  if  the  as- 
sets are  undoubtedly  sufficient  to  pay  all  the  debts  and  leg- 

B  Sturgeon  v.  Schaumburg,  40  Mo.  482.  93  Am.  Dec.  311 ;  Kennerly 
V.  Shepley,  15  Mo.  G40,  57  Am.  Dec.  219;  Cohen  v.  Atkins.  73  Mo. 
163 ;  Smith  v.  Sims,  77  Mo.  269 ;  Clark  v.  Bettelheim,  144  Mo.  258, 
46  S.  W.  135. 

6  Toller,  278,  292 ;    Dullard  v.  Hardy,  47  Mo.  403. 

7  State  ex  rel.  Longdon  v.  Shelby,  75  Mo.  482. 


§  322  PAYMENT   OF    DEBTS,   ETC.  337 

acies,  the  executor  should  proceed  to  disburse  them  as 
promptly  as  would  be  consistent  with  a  safe  administration 
of  the  estate.  Legacies  are  bequests  or  gifts  of  personal 
property  by  will.  They  are  of  two  kinds,  general  and  spe- 
cial. The  first  embraces  such  as  are  pecuniary,  or  such  as 
are  measured  by  quantity  merely.  The  gift  of  a  thousand 
dollars  by  will,  is  a  general  pecuniary  legacy.  So,  if  the 
testator  by  will  give  ten  head  of  cattle,  or  fifty  shares  of 
stock  in  a  corporation,  it  would  be  a  general  legacy.  And 
where  he  has  not  the  cattle  or  stock,  the  bequest  amounts  to 
a  direction  to  the  executor  to  procure  the  thing  given  for 
the  legatee.  A  specitic  legacy  is  one  in  which  the  particular 
chattel  given  is  described  with  certainty,  and  distinguished 
from  all  others  of  the  same  species.  As,  "I  give  to  John 
Doe  the  sword  presented  to  me  by  General  Burbridge." 
When  the  gift  is  of  a  particular  chattel,  so  described  as  to 
be  distinguished  from  all  others  of  its  kind  it  can  only  be 
satisfied  by  the  delivery  of  the  identical  thing;  and  if  it  is 
not  to  be  found  among  the  testator's  effects,  it  fails  alto- 
gether. But  the  gift  of  the  chattel  not  so  distinguished,  is 
satisfied  by  delivering  a  thing  of  the  like  kind;  and  if  it  is 
not  among  the  cfifects  of  the  testator  the  executor  must  pro- 
cure and  deliver  it."* 

§  322.     When  the  Legacy  Will  Lapse. — The  general  rule, 

is,  that  when  the  legatee  dies  before  the  death  of  the  testa- 
tor, the  legacy  is  lapsed,  and  falls  into  the  general  residue 
of  the  testator's  personal  estate.  But  this  rule  is  qualified 
by  our  statute,  which  provides  that,  if  the  legatee  leave 
lineal  descendants  they  shall  take  the  bequest  as  the  legatee 
would  have  done  in  case  he  had  survived  the  testator.'' 

If  the  bequest  is  given  to  two  or  more  jointly  as  joint 
tenants,  and  one  or  more  survive  the  testator,  such  survivor 
will  be  entitled  to  the  gift.^°  If  a  legacy  is  given  in  trust, 
it  will  not  lapse  by  reason  of  the  death  of  the  legatee  (trus- 
tee), in  the  lifetime  of  the  testator.  The  courts  will  supply 
a  trustee,  in  whom  the  title  to  the  legacy  will  vest.^^ 

s  2  Williams  on  Ex'rs,  1040  et  seq. 

9  Rev.  St.  1909.  §  540;  Jamison  v.  Hay,  46  Mo.  546;  Bramell  v. 
Adams,  146  Mo.  70.  47  S.  W.  0.31. 

10  Bredell  v.  Collier,  40  ilo.  287;  Martin  v.  Laciiusse,  47  Mo.  591; 
ante,  §  110. 

11  Ante,  §  114. 

Kel.Mo.P.G.— 22 


338  PAYMENT   OF   DEBTS,  ETC.  §  323 

§  323.  Assent  of  Executor  to  Legacy. — The  gift  of  a 
legacy,  whether  it  be  general  or  specific,  transfers  no  im- 
mediate title  to  the  legatee.  To  render  his  title  perfect,  the 
assent  of  the  executor  is  requisite.  On  him  all  the  testa- 
tor's property  is  devolved,  to  be  applied  in  the  first  place  to 
the  payment  of  debts;  and,  therefore,  before  parting  with 
the  legacy  he  should  be  fully  satisfied  that  there  are  suffi- 
cient assets  to  pay  all  the  debts.  If  the  legatee  should  take 
possession  of  the  thing  bequeathed,  without  the  executor's 
assent,  action  would  lie  to  recover  it  from  him.  And  this 
is  so,  even  where  the  testator  by  his  will  expressly  directs 
that  the  legatee  shall  take  the  gift  without  the  executor's 
assent;  for  the  whole  estate  might  thus  be  taken  in  fraud 
of  creditors.  An  executor  can  maintain  a  suit  in  his  own 
name  on  a  note  specifically  bequeathed  before  he  assents 
to  the  bequest.  When  the  assets  are  insufficient  to  pay  the 
debts,  the  legacies  must  abate,  or  altogether  fail.  If,  on 
failure  of  assets,  the  executor  pays  legacies,  he  makes  him- 
self liable  for  the  debts  to  the  extent  of  the  assets  so  appro- 
priated. Hence  the  law  protects  him  by  making  his  assent 
indispensable  before  a  legacy  can  vest.^^  There  is  no  par- 
ticular form  of  assent  necessary.  After  the  assent  is  once 
given,  it  was  at  common  law  a  question  whether  it  is  in  the 
power  of  the  executor  to  retract  it.  In  section  352,  post, 
reference  is  made  to  the  statute  in  Missouri  which  gives  to 
the  executor  or  administrator,  who  has  paid  legacies  and 
afterwards  finds  there  arc  not  sufficient  assets  for  the  pay- 
ment of  debts,  the  right  to  compel  the  legatees  to  refund 
to  him  the  legacies  so  paid  or  so  much  thereof  as  is  neces- 
sary for  the  payment  of  debts.  If  an  executor  should  assent 
to  a  legacy  believing  the  assets  sufficient  to  pay  the  debts, 
but  debts  which  were  unknown  to  him  are  unexpectedly 
presented,  v/hich  occasion  a  deficiency,  it  would  be  hard  un- 
der such  circumstances,  to  deny  the  executor  the  right  to 
withdraw  his  assent.^^  It  would  be  wise  to  withhold  as- 
sent to  all  legacies  until  the  certain  solvency  of  the  estate 
is  ascertained.  Yet  it  has  been  held  that  a  suit  may  be  main- 
tained by  a  legatee  against  an  executor  who  unreasonably 
withholds  his  assent  to  the  legacy.^* 

12  2  Williams,  Ex'rs,  1235,  note  2. 

13  Roper  on  Leg.  85.5. 

14  Crist  V.  Crist,  1  Ind.  570,  50  Am.  Dec.  481. 


§  325  PAYMENT  OF  DEBTS,  ETC.  330 

In  case  of  doubtful  solvency  of  the  estate  property  specif- 
ically be(jueathed  may  be  delivered  to  the  legatee  if  lie 
will  secure  the  redelivery  thereof  on  demand  to  the  execu- 
tor otherwise  it  should  remain  in  the  hands  of  the  executor 
or  administrator  to  be  distributed  or  sold  as  the  case  may 
require. 

§  324.  Cumulative  Legacies. — Where  a  specific  thing  is 
given  twice  to  the  same  legatee,  whether  in  the  same  will, 
or  in  the  will  and  again  in  a  codicil,  he  can  claim  the  benefit 
only  of  one  legacy,  because  it  could  not  be  given  more  than 
once.^^  So  where  the  like  quantity  is  bequeathed  to  him 
twice,  by  the  same  instrument,  the  legatee  is  entitled  to  one 
legacy  only.^"  But  where  the  bequest  is  of  unequal  quanti- 
ties in  the  same  instrument,  the  one  is  not  merged  in  the 
other,  and  the  legatee  is  entitled  to  both,  the  one  being  cu- 
mulative to,  or  in  addition  to  the  other.  And  where  the 
bequest  is  of  equal  or  unequal  quantities,  bequeathed  in 
different  instruments,  the  legatee  will  take  both,  the  lega- 
cies being  cumulative. ^^ 

§  325.  In  Lieu  of  Dower. — Every  devise  or  bequest  in 
a  will  is  regarded  as  a  gratuity,  and,  therefore  will  not,  in 
general,  be  treated  as  given  in  satisfaction  for  that  to  which 
the  devisee  or  legatee  is  by  law  entitled.  A  bequest,  there- 
fore, will  not  be  considered  as  given  in  satisfaction  of  dow- 
ex,  and  homestead,  unless  it  be  so  expressed  in  the  will.^* 
At  common  law  the  right  to  dower  was  a  legal  right  which 
the  wife  could  not  be  deprived  of  by  a  provision  in  the  will 
in  her  favor,  unless  the  testator  has  manifested  his  intention 
to  deprive  her  of  dower,  either  by  express  words  or  neces- 
sary implication,^'*  and  she  accepts  the  provisions  of  the 
will.-"  This  rule  will  apply  to  her  dower  in  personal  estate, 
when  the  provisions  of  the  will  are  inconsistent  with  her 
right  under  the  law."^    The  design  to  substitute  the  bequest 

15  Toller.  3.'?5.  ic  1  P.  Wms.  424,  note  1. 

17  1  P.  Wins.  425;    Williams.  Ex'rs,  1159(4). 

IS  Van  Orden  v.  Van  Orden,  10  Johns.  (N.  Y.)  30.  6  Am.  Dec.  314; 
Lasher  v.  Lasher,  13  Barb.  (N.  Y.)  lOG ;  Ball  v.  Ball.  165  Mo.  312,  65 
S.  W.  552. 

10  Fuller  V.  Yates,  S  Paige  (N.  Y.)  328;  llawley  v.  Jauies,  5  Pai;;e 
(N.  Y.)  318;  Adsit  v.  Adsit,  2  Johns.  Ch.  (N.  Y.)  451,  7  Am.  Dec. 
539 ;    Glenn  v.  Gunn.  SS  Mo.  App.  423. 

20  Hall  V.  Smith.  103  Mo.  2S9.  15  S.  W.  ti21. 

21  Schwatkon  v.  Dandt.  oA  .Mo.  App.  1. 


3i0  PAYMENT   OF   DEBTS,  ETC.  §  325 

for  dower  must  be  unequivocally  expressed.--  If  she  be 
given  a  devise  of  real  estate  or  other  provision  be  made  for 
her  by  her  husband's  will,  she  will  be  entitled  to  her  dower 
and  homestead  in  the  real  estate,  but  she  must  elect  which 
she  will  take.-^ 

The  property  allowed  by  law  to  the  widow  absolutely  is 
not  to  be  regarded  as  dower,  therefore  she  will  receive  it 
and  the  bequest  both,  because  such  property  is  sacredly  de- 
voted to  the  humane  purpose  of  alleviating  the  calamities 
of  widowhood  and  orphanage.^*  But  if  the  bequest  is  ex- 
pressed to  be  in  lieu  of  the  property  given  her  absolutely, 
she  would  be  forced  to  her  election.  The  law,  as  we  have 
stated  it,  has  application  to  personal  property.  A  devise 
of  real  estate  to  the  widow,  is,  under  the  statute,  to  be  treat- 
ed as  given  in  lieu  of  dower,  unless  the  testator  by  his  will 
otherwise  declare.  The  statute  in  this  respect  is  in  deroga- 
tion of  the  rules  of  the  common  law,  as  at  common  law  in 
order  to  bar  dower  the  will  had  to  state  that  the  devise  was 
made  in  lieu  of  dower.  This  statute  is  restricted  to  a  de- 
vise of  real  estate  and  has  no  application  to  a  widow's  in- 
terest in  her  husband's  personalty.^^ 

§  326.     Legacies  to  Creditors  in  Satisfaction  of  Debts. — 

It  is  the  general  rule  that  a  legacy  given  to  a  creditor,  by 
the  debtor,  which  is  equal  to  or  greater  than  the  debt,  is  to 
be  considered  as  a  satisfaction  of  the  debt.-^  But  a  legacy 
is  never  deemed  a  satisfaction  of  a  debt  contracted  after  the 
date  of  the  will,  nor  where  the  will  expressly  directs  the 
debts  and  legacies  to  be  paid ;  as,  "after  all  my  debts  and 
legacies  are  paid,  then  I  give,  etc.,"  or  in  words  of  that  im- 
port. Nor  where  the  testator  bequeaths  the  money  or  thing 
to  the  legatee  as  a  token  of  regard,  or  from  friendship  or  re- 
lationship, and  the  like.  So  where  the  legacy  is  contingent 
and  uncertain,  or  payable  at  a  future  time,  or  upon  condi- 

22  Hasenritter  v.  Hasenritter,  77  Mo.  1G2 ;  Ball  v.  Ball,  105  Mo. 
312. 

23  Hall  V.  Smith,  103  Mo.  289,  15  S.  W.  621;  Davidson  v,  Davis,  86 
Mo.  440;    Scliorr  v.   Etling,  124  Mo.  42,  27  S.  W.  395. 

2  4  Glenn  v.  Giinn,  88  Mo.  App.  423. 

2  5  Kev.  St.  1909.  §  .360;  Sparks  v.  Dorrell,  151  Mo.  App.  173,  131 
S.  W.  761 ;  Bogart  v.  Bogart,  138  Mo.  419,  40  S.  W.  91 ;  Ball  v.  Ball, 
165  Mo.  312,  65  S.  W.  552;  Spratt  v.  Lawson,  176  Mo.  175,  75  S. 
W.  642;  Steepler  v.  Silverberg,  220  Mo.  25S,  119  S.  W.  418;  O'Day 
V.  O'Day.  193  Mo.  62,  91  S.  W.  921,  4  L.  R.  A.  (N.  S.)  922. 

26  2  Williams,  Ex'rs,  1166. 


§  328  PAYMENT  OF   DEBTS,  ETC.  341 

tion,  it  is  not  a  satisfaction  and  the  legatee  is  entitled  to 
both  the  del)t  and  t:;e  legacy.  Or,  if  the  legacy  is  less  than 
the  debt,  or  the  debt  is  unliquidated,  or  in  negotiable  paper, 
or  in  a  current  account,  the  legacy  does  not,  in  general,  im- 
pair the  debt.  So  where  the  legacy  is  of  a  different  nature 
from  the  debt,  as  where  the  testator  is  indebted  by  bond, 
and  bequeaths  an  interest  in  land.  A  specific  legacy  is 
never  a  satisfaction  of  a  debt,  unless  so  expressly  declared 
in  the  will,  and  so  accepted  by  the  legatee. 

But  when  there  is  a  deficiency  of  assets  there  is  strong 
reason  for  holding  the  legacy  a  satisfaction,  and  according- 
ly, it  is  laid  down  by  respectable  authority,  that  it  shall  in 
all  such  cases  be  deemed  a  satisfaction. ^^  When  an  insol- 
vent legatee  is  indebted  to  the  estate,  such  indebtedness 
should  be  deducted  from  his  legacy  in  the  distribution  of 
the  estate. ^^ 

§  327.  Legacy  by  Creditor  to  His  Debtor. — A  bequest 
of  a  debt  to  a  debtor  is  no  more  than  a  release  by  will.  It 
will  not  take  effect  in  case  there  is  a  deficiency  of  assets  for 
the  payment  of  debts;  because,  the  debt  itself  is  assets  in 
the  hands  of  the  executor,  and  the  legacy  cannot  operate 
without  his  assent ;  nor  to  defeat  the  payment  of  the  debts.-" 
The  rule  of  the  common  law,  that  the  appointing  of  a  debt- 
or executor  operated  as  a  release  or  extinguishment  of  the 
debt,  is  abrogated  by  our  statute.  The  indebtedness  of  the 
executor  or  administrator  is  assets,  and  must  be  inventoried 
and  used  as  such.^° 

§  328.  Interest  on  Legacies. — It  is  competent  for  the 
testator  to  declare  whether  the  legacies  bequeathed  by  him 
shall  bear  interest,  and  to  prescribe  the  rate  thereof  and 
time  from  which  it  shall  be  computed.  The  general  rule  is, 
that  all  legacies  draw  interest  after  they  are  payable,  wheth- 
er the  time  limited  for  their  payment  is  fixed  by  the  will  or 
by  the  statute.  The  executor  cannot  be  considered  in  de- 
fault unless  he  withholds  payment  after  the  legacy  is  due." 

2  7  Toller,  337. 

2  8  Lietman's  Estate  v.  Lietiuan,  149  Mo.  112,  50  S.  W.  307,  73  Am. 
St.  Rep.  374. 

20  2  P.  Wms.  331,  332;   2  Williams,  Ex'rs.  1173  et  seq. 

80  Rev.  St.  1900,  §§  107,  108;  Eaton  v.  Walsh,  42  Mo.  272;  Wilson 
V.  Ruthrauff,  82  Mo.  App.  435;  Young  v.  Thraslu'V,  48  Mo.  App.  327; 
McCarty  v.  Frazer,  02  Mo.  2G3 ;  Williams  v.  Williams,  145  -Mo.  App. 
382,  129  S.  W.  454. 

31  Hepburn  v.  Hepburn,  2  Bradf.  Sur.  (N.  Y.)  74;    Toller,  323. 


342  PAYMENT   OF   DEBTS,  ETC.  §  329 

There  are  exceptions  to  this  rule.  One  is,  when  a  legacy  is 
given  by  a  parent  to  a  child,  and  no  other  provision  is  made 
for  its  support,  interest  will  be  computed  from  the  death  of 
the  testator.^^  Another  is,  where  a  legacy  is  given  to  the 
widow  in  lieu  of  dower.  In  such  a  case,  interest  is  general- 
ly allowed  from  the  testator's  death. ^^  So,  an  annuity  be- 
queathed generally,  commences  from  the  testator's  death. ^* 

§  329.  Legatee  Entitled  to  Increase. — A  specific  legatee 
of  domestic  animals  is  entitled  to  the  increase  arising  be- 
tween the  death  of  the  testator  and  the  assent  of  the  execu- 
tor to  the  legacy;  ^^  because  the  assent,  when  given,  relates 
back  to  the  time  of  the  testator's  death.  When  legacies  are 
charged  upon  real  estate,  it  is  also  a  general  rule,  that  they 
do  not  vest,  and  consequently,  will  not  bear  interest,  until 
the  time  of  payment  has  elapsed. ^^  If  land  be  devised  sub- 
ject to  the  payment  of  legacies,  the  devisee,  after  accepting 
the  devise,  is  personally  liable  for  the  legacies,  and  he  must 
pay  interest  on  them  from  the  time  they  were  payable, 
whether  they  were  demanded  or  not."  If,  in  such  case,  the 
devisee  refuse  to  accept  and  pay  the  legacies,  the  land  de- 
scends to  the  heirs,  and  the  legatees  may  follow  it  in  their 
hands  in  order  to  obtain  their  legacies.  The  remedy  in  such 
case  is  in  a  court  of  equity,  to  carry  the  intent  of  the  testa- 
tor into  effect.^^ 

§  330.  Time  of  Payment. — Executors  and  administra- 
tors cannot  be  compelled  to  make  distribution,  or  pay  lega- 
cies until  six  months  after  the  date  of  their  letters,  unless 
the  legacies  specified  are  perishable,  or  subject  to  injury  if 
retained  six  months.  Nor  can  they  be  compelled  to  pay  leg- 
acies or  make  distribution  within  one  year  after  the  date 
of  their  letters,  unless  bond  and  security  be  given  by  the 
legatee  or  distributee  to  refund  his  due  proportion  of  any 

32  Lupton  V.  TAipton,  2  Johns.  Ch.  (N.  Y.)  429;  Phmey  v.  Fanclier, 
?,  Bradf.  Sur.  (N.  Y.)  198 ;  Williamson  v.  Williamson,  G  Paige  (N.  Y.) 
298.' 

3  3  Seymour  v.  Butler,  3  Bradf.  Sur.  (N.  Y.)  193. 

3  4  Craig  V.  Craig,  3  Barb.  Ch.  (N.  Y.)  7G. 

3  5  Went.  Ex.  44.5. 

3  6  Roberts  v.  Malin,  5  Iiid.  18. 

37  Glen  V.  Fisher,  6  Johns.  Ch.  (N.  Y.)  33,  10  Am.  Dec.  310;  Bird- 
sail  V.  Hewlett,  1  Taige  (N.  Y.)  33,  19  Am.  Dec.  392 ;  Tole  v.  Hardy, 
6  Cow.  (N.  Y.)  3.33. 

3  8Birdsall  v.  Hewlett,  1  Baige  (N.  Y.)  33;  Fish  v.  Huwlaud,  1 
I'aige  (N.  Y.)  23 ;    Harris  v.  Fly,  7  Paige  (N.  Y.)  421. 


§  332  PAYMENT  OF   DEBTS,  ETC.  343 

debt  which  may  afterward  be  established  against  the  estate, 
and  the  costs  attending  the  recovery  thereof.^*  Before  the 
amendments  of  1911,  the  periods  were  one  and  two  years, 
respectively,  instead  of  six  months  and  one  year  as  now.*" 
A  legatee  who  has  a  vested  interest  in  a  fund  on  attaining 
his  majority  may  ol)tain  an  order  for  its  payment.*^  When 
the  assignment  of  a  legacy  is  disputed,  the  probate  court 
has  no  jurisdiction  to  determine  the  matter.'*- 

§  331.  Debts  to  Be  Paid  Before  Legacies, — The  pay- 
ment of  legacies,  whether  with  or  without  an  order  of  court 
or  refunding  bond,  should  always  be  postponed  to  the  pay- 
ment of  the  debts,  and  unless  the  assets  are  clearly  and  un- 
doubtedly sufficient,  the  court  should  not  order  the  pay- 
ment of  legacies  until  the  debts  are  settled.  But  if  upon 
any  settlement  it  appear  that  there  is  sufficient  money  to 
satisfy  all  demands  against  the  estate,  the  court  should  or- 
der the  payment  of  legacies  and  distribution  of  shares,  as 
in  the  case  of  debts.  Next  to  the  payment  of  debts,  specific 
legacies  must  be  first  satisfied,  then  general  legacies,  after 
which,  distribution  must  be  made  of  any  surplus  among 
those  entitled  under  the  laws  of  descents  and  distributions.*-' 
If  there  are  not  funds  sufficient  to  pay  all  the  general  lega- 
cies, an  abatement  must  be  made  and  each  paid  ratably,  i.  e. 
in  proportion  to  the  amount  of  his  legacy.  If  the  legatee  is 
a  minor,  his  legacy,  in  the  absence  of  any  provision  for  the 
pa3'ment  of  it  in  the  will,  may  under  the  direction  of  the 
court,  be  paid  to  the  guardian  of  such  minor. 

It  has  been  held  that  a  residuary  legatee  may,  by  a  prop- 
er proceeding,  have  the  settlement  of  an  estate  by  an  exec- 
utor, set  aside,  for  mistake  in  failing  to  account  for  money.** 

§  332.  Refunding  Bond  and  Receipts. — In  all  cases 
where  a  legacy  is  paid  a  voucher  should  be  taken,  referring 

8  9  Rev.  St.  1909,  §§  244,  245,  as  amended  by  Laws  1911,  pp.  85,  80, 
§§  1,  2;  State  ex  rel.  Wann  v.  Dickson,  21.3  Mo.  66.  Ill  S.  W.  817: 
Ponnd  V.  Cassity.  160  Mo.  419,  66  S.  W.  273;  State  v.  Grigsby,  92 
Mo.  419,  5  S.  W.  .39. 

4  0  Bailey  v.  Trustees  of  Ldncoln  Academy,  12  Mo.  178;  Freeland 
V.  Wilson,  18  Mo.  380. 

41  Rev.  St.  1909,  §§  244,  245. 

42Johnsou  V.  Jones,  47  Mo.  App.  237;  Canloy  v.  Truitt,  63  Mo. 
App.  350. 

■»3  Rev.  St.  1909,  §  246;  In  re  Elliotfs  Estate,  98  Mo.  379,  11  S.  W. 
739;  Bramell  v.  Cole.  136  Mo.  201,  37  S.  W.  924,  58  Am.  St.  Rep.  619; 
L:uld  V.  Stephens.  147  Mo.  319,  48  S.  W.  915. 

**  Camper  v.  Ilayeth,  10  Ind.  528. 


344  PAYMENT   OF   DEBTS,  ETC.  §  332 

to  the  legacy,  with  sufficient  certainty  to  satisfy  the  court 
when  the  voucher  is  offered  in  the  executor's  settlement, 
that  the  money  has  been  properly  disbursed. 

Receipt  for  a  Specific  Legacy 

Received  of  J.  D.,  executor  (or  administrator  with  the  will  an- 
nexed) of  the  estate  of  R.  R.,  late  of  county,  deceased,  one 

gold  watch  (or  describe  the  article),  which  was  specifically  bequeath- 
ed to  me  in  and  by  the  last  will  of  the  said  R.  R., ,  19 — • 

E F . 

Receipt  for  a  Legacy 

Received  of  J.  D.,  executor  of  the  estate  of  R.  R.,  late  of 

county,  deceased,  one  hundred  dollars  in  full  (or  in  part)  of  a  legacy 

bequeathed  to  me  by  the  last  will  of  said  R.  R.,  deceased,  , 

10-.  E F . 

Refunding  Bond  of  Legatee 

Know  all  men  that  we,  W.  M.,  as  principal,  and  E.  F.  and  G.  H., 
as  sureties,  acknowledge  ourselves  bound  to  J.  D.,  executor  of  the 
last  will  of  R.  R.,  late  of  county,  deceased,  in  the  sum  of 

dollars,  upon  this  condition.  Whereas,  the  said  J.  D.,  ex- 
ecutor of  the  last  will  of  R.  R.,  deceased,  as  aforesaid,  has  this  day 
(by  order  of  the court,  etc.)  paid  to  said  W.  M.  the  sum  of 

dollars  in  full  (or  in  part)  payment,  of  a  legacy  bequeathed 

to  him  by  the  last  will  of  said  R.  R.  Now,  if  the  said  W.  M.  shall 
on  demand,  or  when  by  the  proper  order  of  the  court  he  shall  be 
required  so  to  do,  pay  over  and  refund  to  the  said  J.  D.,  or  to  the 
person  or  authority  legally  entitled  to  receive  the  same,  his  due 
proportion  of  any  debt  which  may  hereafter  be  established  against 
the  said  estate  and  the  costs  attending  the  recovery  thereof,  this 
bond  to  be  void ;   otherwise  to  be  in  full  force. 

Witness  our  hands  and  seals,  this day  of ,  19 — . 

W M .     [Seal.] 

E F .     [Seal.] 

G H .     [Seal.] 

Taken  and  acknowledged  before  me,  J.  D.,  executor. 

§  333.  Proceedings  Against  Administrator. — When  an 
executor  or  administrator  fails  to  pay  over  money  to  the 
widow,  heirs,  legatees  or  distributees  upon  the  order  of  the 
court,  the  same  proceedings  may  be  had  against  him  and 
his  securities  to  compel  payment,  as  where  he  fails,  when 
ordered  by  the  court,  to  pay  demands  allowed  against  the 
estate." 

4  6  Rev,  St.  1099,  §  254;  Clarke  v.  Sinks,  144  Mo.  448,  46  S.  W.  199; 
Kiernan  v.  Robertson,  116  Mo.  App.  56,  92  S.  W.  138;  State  ex  rel. 
Wann  v.  Dickson,  213  Mo.  66,  111  S.  W.  817. 


§  334  DISTRIBUTION   OF   ESTATES  345 


CHAPTER  XXVI 

OF  THE  DISTRIBUTION  OF  ESTATES,  AND  INCIDENTAL 
MATTERS 

f  334.  When  the  widow  takes  the  whole  estate. 

335.  Who  are  entitled  to  distribution. 

336.  Same — Share  of  widow. 

337.  Same— Children  of  half  blood— Collateral  kindred. 

338.  Same — When  they  take  per  capita  or  per  stirpes. 

339.  Same — Advancement — How  considered. 

340.  Distribution  of  estate  not  bequeathed. 

341.  Bastards — Illegitimate  children  inherit. 

342.  Colored  persons,  entitled  to  distribution. 

343.  Distribution  of  property  in  kind,  or  the  proceeds  thereof. 

344.  Same — Appointment  of  connuissioners. 

345.  Notice  of  petition  for  partition. 

346.  Rights  of  parties  to  be  determined — Order  of  partition. 

347.  Same — By  whom  sold. 

348.  Forms  used  in  making  partition. 

349.  When  debts  have  been  paid  out  of  real  estate. 

350.  Disputed  questions — How  settled. 

351.  Appointment  and  duties  of  guardian  ad  litem  for  minors. 

352.  Refunding  by  legatee  or  distributee. 

353.  Proceedings  against  distributee  or  legatee. 

354.  Distribution  or  allowance  for  support  of  children. 

355.  Widow's  share  of  rents. 

356.  Disposition  of  legacy  or  distributive  share  when  not  called 

for. 

357.  Share  called  for  within  twenty-one  years. 

358.  Estate  escheats. 

359.  Administration  of  estate  where  absent  seven  years. 

§  334.     When  the  Widow  Takes  the  Whole  Estate.— If 

upon  the  return  of  the  inventory  and  appraisement,  it  ap- 
pear to  the  court  that  the  whole  amount  of  the  estate  is 
not  more  than  that  to  which  the  widow  and  children  under 
sixteen  years  of  a.ge  are  entitled  by  law,  without  being  sub- 
ject to  the  payment  of  debts,  and  that  there  are  no  debts 
due  the  estate,  or  so  small  that  they  would  not  defray  the 
expenses  of  collection  and  of  administration,  the  court  may, 
in  its  discretion,  make  an  order  that  such  estate  be  delivered 
to  the  widow  and  children  under  sixteen  years  of  age,  and 
that  all  further  advertisements,  settlements  and  other  pro- 
ceedings under  said  administration  be  dispensed  with,  un- 
less further  estate  be  discovered,  or  the  court  order  the  ad- 


'MQ  DISTRIBUTION    OF    ESTATES  §  334: 

niinistration  to  be  proceeded  with.'^  If  the  entire  estate 
does  not  amount  to  more  than  the  absolute  property  of 
the  widow,  or  children  if  there  be  no  widow,  the  court  may 
order  that  no  letters  be  granted,  and  that  the  estate  be 
vested  in  such  widow  or  children.-  It  has  been  held  that 
when  the  widow  takes  the  entire  estate,  she  is  liable  for 
the  expenses  of  the  funeral  and  last  sickness.^ 

We  have  in  a  former  chapter  shown  what  estates  the 
widow  is  entitled  to  as  against  creditors,  heirs,  legatees  and 
distributees,^  and,  of  course,  the  property  which  she  is  en- 
titled to  should  be  handed  over  to  her  without  subjecting 
it  to  the  payment  of  the  expenses  of  a  fruitless  administra- 
tion. The  above  provision  of  the  statute,  however,  gives 
her,  in  the  discretion  of  the  court,  whatever  debts  may  be 
due  the  estate,  if  there  should  not  appear  to  be  a  sufficiency 
of  them  to  defray  the  expenses  of  the  administration.  Upon 
the  order  of  the  court  being  made  directing  the  estate  to 
be  handed  over  to  the  widow,  it  would  be  proper  for  the 
executor  or  administrator  to  take  her  receipt  for  the  same 
and  file  it  with  the  papers  in  the  estate.  The  order  of  the 
court  so  made,  will  enable  her  to  maintain  suits  in  her  own 
name  for  the  collection  of  all  debts  due  the  estate,  and  to 
obtain  possession  of,  or  damages  for,  any  property  of  the 
estate. 

§  335.  Who  are  Entitled  to  Distribution. — The  personal 
estate  of  an  intestate  does  not  descend  immediately  to  those 
entitled  to  distribution,  but  where  there  is  an  administra- 
tion on  the  estate  the  title  and  right  of  possession  vest  in 
the  administrator,  for  the  purpose  of  paying  the  debts. ^  But 
if  there  be  no  administrator,  or  if  the  personal  estate  shall 
not  be  required  for  the  payment  of  debts  and  legacies,  it 
may,  by  order  of  the  court,  be  disbursed  to  those  entitled  to 
distribution. 

In  Missouri,  the  real  and  personal  estate  of  an  intestate, 
not  otherwise  disposed  of,  descends  and  must  be  distributed 
in  parcenary  to  his  kindred,  male  and  female,  subject  to  the 

1  Rev.  St.  1909,  §  258 ;    Pidcock  v.  Buffam,  61  Mo.  370. 

2  Ante,  §  101.  See  Rev.  St.  1909,  §  10 ;  Turner  v.  Campbell,  124 
Mo.  App.  1.33,  101  S.  W.  119. 

3  Green  v.  Weaver,  78  Ind.  494. 

4  Ante,  §§  231-236 ;  Glenn  v.  Gunn,  88  Mo.  App.  423 ;  Loessing  v. 
Loesf^ing,  88  Mo.  App.  494. 

5  Gillet  v.  Camp,  19  Mo.  404 ;   Collamore  v.  Wilder,  19  Kan.  67. 


§  336  DISTBIBUTION   OF   ESTATES  347 

payment  of  debts  and  the  widow's  dower,  in  the  following 
course:  1.  To  his  children  or  their  descendants,  in  equal 
parts.  2.  To  the  father,  mother,  brothers  and  sisters,  or 
their  descendants  in  equal  parts.  When  one  dies  leaving  a 
widow  and  one  child,  and  the  child  afterwards  dies,  she  be- 
comes the  heir  of  the  child,  and  inherits  its  estate.®  3.  To 
the  husband  or  wife.  4.  To  the  grandfather,  grandmother, 
uncles  and  aunts,  and  their  descendants  in  equal  parts.  5. 
Then  to  the  great-grandfathers,  great-grandmothers,  and 
their  descendants  in  equal  parts ;  and  so  on  in  other  cases 
without  end,  passing  to  the  nearest  lineal  ancestors,  and 
their  children  and  their  descendants,  in  equal  parts. '^ 

An  executor  or  administrator  is  not  liable  to  garnishment 
on  account  of  any  money  in  his  hands  belonging  to  any  dis- 
tributee or  legatee  prior  to  an  order  of  distribution  or  for 
the  payment  of  legacies  or  the  allowance  of  a  demand  found 
to  be  due  from  the  estate.* 

§  336.  Same — Share  of  Widow. — The  husband  and  wife 
stand  third  in  the  order  of  those  entitled  to  distribution, 
and  their  right  depends  upon  a  failure  of  children  and  their 
descendants,  and  of  father,  mother,  brothers  and  sisters  and 
their  descendants.  But,  by  the  law  of  dower,  the  wife  is  en- 
titled to  take  a  share  equal  to  that  of  a  child  of  the  husband." 
And  if  the  husband  die  without  any  child  or  other  descend- 
ants in  being,  capable  of  inheriting,  his  widow  is  entitled, 
(1)  to  all  the  real  and  personal  estate  which  came  to  the 
husband  in  right  of  the  marriage,  and  to  all  the  personal 
property  of  the  husband  which  came  to  his  possession  with 
the  written  assent  of  the  wife,  remaining  undisposed  of, 
absolutely,  not  subject  to  the  payment  of  debts;  (2)  to  one- 
half  of  the  real  and  personal  estate  belonging  to  the  husband 
at  the  time  of  his  death,  absolutely,  subject  to  payment  of 
debts.'" 

e  Lynde  v.  Williams,  68  INIo.  HGO. 

7  Rev.  St.  1909,  §  332. 

8  Rev.  St.  1909,  §  2415;  Curlinj?  v.  Hyde,  10  Mo.  374;  Kiornan  v. 
Robertson,  116  Mo.  App.  56,  92  S.  W.  138;  Richards  v.  Griggs,  16 
Mo.  416,  57  Am.  Dec.  240;  Lessing  v.  Vertrees,  32  Mo.  431;  God- 
man  V.  Gordon,  61  Mo.  App.  685. 

9  Rev.  St.  1909,  §  356. 

10  Rev.  St.  1909.  S  351;  llenidon  v.  Herndon's  Adm'r,  27  Mo.  421; 
Cason  V.  Cason,  28  Mo.  47;  .Martin  v.  Jones,  1,55  Mo.  App.  490,  134 
S,  W.  1097 ;    Sparks  v.  Dorrell,  151  ^lo.  App.  173,  131  S.  W.  761. 


348  DISTRIBUTION   OF   ESTATES  §  336 

If  the  widow  elects  to  take  a  child's  part  in  lieu  of  stat- 
utory dower,  she  takes  a  share  of  a  child  in  respect  to  quan- 
tity only,  but  does  not  take  in  the  character  and  capacity 
of  a  child.  Thus,  she  has  not  the  right  under  R.  S.  1909, 
§  337,  to  compel  the  court  to  bring  into  hotchpot  advance- 
ments made  to  the  children  who  share  in  the  estate,  nor- is 
the  child's  share  allowed  to  her  as  widow  chargeable  with 
advancements  made  during  the  life  of  the  intestate  hus- 
band.^^  Although  she  elects  to  take  a  child's  part  in  lieu 
of  dower,  she  still  remains  entitled  to  the  four  hundred  dol- 
lar allowance  given  absolutely  to  the  widow  by  statute. 
But  where  she  takes  under  a  will,  and  the  provisions  of  the 
will  are  inconsistent  with  the  right  given  her  by  law  to 
dower  in  personalty,  she  will  not  be  permitted  to  take  both. 
Yet,  where  no  such  inconsistency  necessarily  appears  in 
the  provisions  of  the  will,  both  may  be  properly  allowed.^^ 
As  the  right  of  quarantine,  i.  e.,  the  use  of  the  mansion 
house,  plantation  or  curtilage  of  her  deceased  husband  for 
a  period  subsequent  to  his  death,  is  an  incident  of  dower, 
when  the  widow  accepts  the  provisions  of  her  husband's 
will  granting  to  her  real  estate  in  lieu  of  dower,  she  will 
not  be  entitled  to  quarantine.  The  same  result  logically 
follows  where  she  elects  to  take  a  child's  part  in  lieu  of 
dower.^^  (A  further  discussion  of  the  rights  of  the  widow 
is  had  in  Chapter  XXXII  on  "Dower"  and  in  section  212, 
ante,  concerning  "Allowance  to  Widow.") 

§  337.  Same— Children  of  the  Half  Blood,  Collateral 
Kindred,  etc. — Children  of  the  intestate  or  descendants  of 
the  intestate  born  after  his  death  inherit  in  like  manner  as 
if  born  in  his  lifetime;  but  no  right  of  inheritance  accrues 
to  any  person  other  than  the  children  or  descendants  of  the 
intestate,  unless  they  are  in  being,  and  capable  in  law  to 
take,  as  heirs,  at  the  time  of  the  intestate's  death.^*  A  child 
unborn  will  not  only  inherit  all  manner  of  estates,  but  take 
remainders,  vested  or  contingent,  as  though  living  when 

11  Brown  v.  Tucker's  Estate,  13.5  Mo.  App.  598,  117  S.  W.  96. 

12  Martin  v.  Jones,  155  Mo.  App.  490,  134  S.  W.  1097;  Sparks  v. 
Dorrell,  151  Mo.  App.  173,  131  S.  W.  761.  See  Griffith  v.  Canning, 
54  Mo.  2S2. 

i3Tincher  v.  Phillips,  .37  Mo.  App.  621;  Tylor  v.  Cartwright,  40 
Mo.  App.  37S ;  Hall  v.  Smith,  103  Mo.  289,  15  S.  W.  621 ;  Keeuey  v. 
McVoy,  206  Mo.  42,  103  S.  W.  946. 

14  Rev.  St.  1909,  §  333 ;   Aubuchon  v.  Bender,  44  Mo.  560. 


§  337  DISTRIBUTION   OF   ESTATES  349 

the  particular  estate  determined."  If  there  be  no  children 
or  their  descendants,  father,  mother,  brother  or  sister,  nor 
their  descendants,  husband  or  wife,  nor  any  paternal  nor 
maternal  kindred  capable  of  inheriting,  the  whole  will  go 
to  the  kindred  of  the  wife  or  husband  of  the  intestate,  in 
the  like  course  as  if  such  wife  or  husband  had  survived  the 
intestate,  and  then  died  entitled  to  the  estate."  When  the 
inheritance  is  directed  to  pass  to  the  ascending  and  col- 
lateral kindred  of  the  intestate,  if  part  of  such  collaterals 
be  of  the  whole  blood  of  the  intestate,  and  the  other  part  of 
the  half  blood  only,  those  of  the  half  blood  shall  only  inherit 
half  as  much  as  those  of  the  whole  blood;  but  if  all  such 
collaterals  be  of  the  half  blood,  they  shall  have  whole  por- 
tions, only  giving  to  the  ascendants  double  portions. ^^  A 
child  adopted,  according  to  the  Missouri  statute,  although 
above  the  age  of  majority  will  inherit  from  the  adoptive 
parents,  and  this  right  does  not  conflict  with  the  law  of  de- 
scents." But  the  statute  governing  the  matter  must  be 
strictly  complied  with. 

The  adopted  child  does  not  inherit  from  the  collateral 
kindred  of  its  adopted  parent,  nor  from  the  ancestors  of  the 
adopted  parents,  nor  from  the  adopted  parent's  natural 
children.  Where  the  adoption  is  by  the  husband  only  and 
not  joined  in  by  the  wife,  the  adopted  child  inherits  alone 
from  the  adoptive  husband  and  not  from  his  wife.^^ 

When  several  lineal  descendants,  all  of  equal  degree  of 
consanguinity  to  the  intestate,  or  his  father,  mother,  broth- 
ers and  sisters,  or  his  grandfather,  grandmother,  uncles  and 
aunts,  or  any  ancestor  living  and  their  children,  come  into 
partition,  they  will  take  per  capita,  that  is  by  persons; 
where  a  part  of  them  are  dead,  and  part  living,  and  the  issue 
of  those  dead  have  a  right  to  partition,  such  issue  will  take 
per  stirpes,  that  is,  the  share  of  the  deceased  parent.-" 

15  Aubuchon  v.  Bender,  44  Mo.  500;  Gates  v.  Seibert,  157  Mo.  254, 
57  S.  W.  1065. 

16  Rev.  St.  1900,  §  3.'?4. 

IT  Rev.  St.  1900,  §  .S;i5 ;   Smith  v.  White,  165  Mo.  590,  65  S.  W.  1013. 

18  Fosburgh  v.  Rogers,  114  Mo.  122,  21  S.  W.  S2.  19  L.  R.  A.  201; 
Clarkson  v.  Hatton,  143  Mo.  47,  44  S.  W.  761,  .39  L.  R.  A.  74S,  65 
Am.  St.  Rep.  635 ;  In  ro  Moran's  Estate.  151  Mo.  555,  52  S.  W.  377 ; 
Steele  v.  Steele,  161  Mo.  566,  61  S.  W.  815. 

18  Hockaday  v.  Lynu.  200  Mo.  456,  98  S.  W.  5S5.  8  L.  R.  A.  (N.  S.) 
117,  118  Am.  St.  Rep.  672.  9  Ann.  Gas.  775;  Sarazia  v.  Union  R. 
Co.,  153  Mo.  479.  55  S.  W.  92. 

20  Rev.  St.  1909.  §  336;    In  re  WilUams'  Estate.  62  Mo.  App.  :339. 


350  DISTRIBUTION    OF    ESTATES  §  338 

§  338.  Same. — Persons  are  said  to  take  per  capita  when 
they  take  in  their  own  right.  When  all  the  next  of  kin  are 
of  the  same  degree  of  kindred  to  the  deceased,  they  take 
equal  shares  per  capita.  Thus,  if  the  father  have  three  chil- 
dren, John,  Henry  and  Mary,  and  they  all  die  before  their 
father,  John  leaving  one  child,  Henry  two  and  Mary  four, 
and  afterwards  the  father  dies  intestate;  in  that  case  all  his 
grand-children  will  take  an  equal  share ;  for  as  his  chil- 
dren are  all  dead,  their  children,  being  of  the  same  degree 
of  kindred,  take  as  next  of  kin  per  capita,  and  not  by  rep- 
resentation. In  the  case  supposed,  the  seven  grand-children 
will  each  take  a  one-seventh  part.'^  They  inherit  from 
their  grandfather  and  not  from  their  parents  respectively.^^ 

Persons  are  said  to  take  per  stirpes  where  they  take  not 
in  their  own  right,  but  by  representation.  Thus,  if  the  fa- 
ther have  three  children,  John,  Henry  and  Mary,  and  John 
dies  leaving  two  children,  Henry  dies,  leaving  three  chil- 
dren, and  Mary  alone  survives  her  father,  who  dies  intes- 
tate; in  this  case  Mary  takes  in  her  own  right  per  capita, 
one  third;  the  three  children  of  Henry  per  stirpes,  as  rep- 
resenting the  stock  of  the  father,  another  third;  and  the 
two  children  of  John  in  like  manner  the  remaining  third. ^^ 
Although  the  children  of  Henry  and  John,  in  the  case  sup- 
posed, inherit  from  the  grandfather,  yet  they  stand  in  their 
fathers'  stead  and  take  the  share  that  he  would  have  taken 
if  living,  and  subject  to  the  charge  of  advancements.-* 

§  339.  Advancements,  How  Considered. — Where  any  of 
the  children  of  the  intestate  who  shall  have  received  in  his 
lifetime,  any  real  or  personal  estate  by  way  of  advancement, 
shall  choose  to  come  into  partition  with  the  other  parceners, 
such  advancement  shall  be  brought  into  hotchpot  with  the 
estate  descended. ^^  The  doctrine  of  bringing  advances  into 
hotchpot  applies  only  to  cases  of  intestacy.  Maintaining, 
educating  or  giving  money  to  a  child  under  the  age  of  ma- 
jority, without  any  view  to  a  portion  or  settlement  in  life, 
shall  not  be  deemed  an  advancement.^'^     But  an  advance- 

21  2  Williams  on  Ex'rs,  1349. 

2  2  Banium  v.  Barnum,  119  Mo.  63,  24  S.  W.  780. 

2  3  2  Williams  on  Ex'rs,  1349. 

24in  re  Williams'  testate,  62  Mo.  App.  3.39;  Copeuliaver  r.  Copen- 
haver,  78  Mo.  .5-5 ;    Aull  v.  Day,  133  Mo.  337,  34  S.  W.  578. 

2  5  Rev.  St.  1909,  §§  337,  338;  In  re  Lear's  Estate,  146  Mo.  App. 
642,  124  S.  W.  592. 

26  Ray  V.  Jjoper,  65  Mo.  470;  Barrier  v.  Barrier,  58  Mo.  222; 
Hall  V.  Hall,  107  Mo.  101,  17  S.  W.  811. 


§  339  DISTRIBUTION   OF   ESTATES  851 

ment  seems  to  be  that  which  is  given  by  a  father  to  his 
child,  or  presumptive  heir,  by  anticipation  of  what  he  might 
inherit,  is  given  and  accepted  as  the  child's  share,  or  in  lieu 
of,  or  as  a  part  of  the  share  the  child  is  supposed  to  be  en- 
titled to  in  the  father's  estate  at  his  death ;  the  child's  dis- 
tributive share  is  given  to  him  in  advance  of  his  father's 
death.  A  voluntary  conveyance  of  real  estate  by  a  parent 
to  a  child  is  prima  facie  an  advancement.^^  Money  or  prop- 
erty given  to  grand-children  in  the  lifetime  of  their  parent 
are  prima  facie  gifts,  and  not  advancements,  but  it  may  be 
shown  that  such  money  or  property  was  intended  as  an  ad- 
vancement to  the  parent. ^^  A  debt  due  from  a  child  to  his 
father  differs  from  an  advancement.  In  the  case  of  a  debt, 
the  money  may  be  recovered  by  an  action  for  the  use  of 
the  estate,  whether  other  property  be  left  by  the  deceased 
or  not,  whereas,  an  advancement  cannot  be  recovered  from 
the  child.  It  merely  bars  his  right  to  receive  any  part  of 
his  father's  estate,  unless  he  brings  into  hotchpot  the  prop- 
erty advanced.  In  which  case,  if  the  advancement  be  equal 
to,  or  greater  than  the  shares  which  fall  to  the  other  chil- 
dren, he  will  be  entitled  to  no  more,  though  not  required 
to  refund  anything.  If  it  falls  short  of  his  portion,  he  will 
receive  from  the  estate  enough  to  make  him  equal  with 
the  rest.'®  In  ascertaining  the  share  of  a  child  or  dis- 
tributee, the  value  of  the  thing  given  by  way  of  advance- 
ment must  be  computed  as  of  the  time  when  it  was  given. 
Increase  in  value  or  interest  cannot  be  charged  upon  an  ad- 
vancement. The  value  of  both  real  and  personal  propertv 
at  the  time  it  was  advanced  is  charged  against  the  share  of 
the  child  who  receives  same.^° 

Collateral  heirs  cannot  be  compelled  to  bring  into  hotch- 
pot advancement  received  by  them  before  receiving  their 
shares,  nor,  as  stated  before  in  this  chapter,  can  a  widow  be 
compelled  so  to  do  where  she  elects  to  take  a  child's  part 
in  lieu  of  dower.^^  In  its  nature  advancement  is  money 
or  property  conveyed  or  delivered  to  a  child  in  anticipation 

2T  Allenian  v.  Manning,  44  Mo.  App.  4;  In  re  Estate  of  Elliott, 
9S  Mo.  379.  11  S.  W.  739 ;  Nelson  v.  Nelson,  90  Mo.  400,  2  S.  W.  413 ; 
McDonald  v.  McDonald,  86  Mo.  App.  122. 

28  2  P.  Wms.  443;    Alleman  v.  Manning,  44  Mo.  App.  4. 

29  Ladd  V.  Stephens,  147  Mo.  319,  48  S.  W.  915. 

30  Dobbins  v.  Mnniphreys,  171  Mo.  198,  70  S.  W.  S15 ;  Johnson  v. 
Antriken.  20")  Mo.  244,  103  S.  W.  93G. 

31  In  re  Williams'  Estate,  62  Mo.  App.  339. 


352  DISTRIBUTION   OF    ESTATES  §  340 

that  it  will  be  entitled  to  an  inheritance  on  the  death  of  the 
party  making  the  advancement.  Memoranda  or  written 
declarations  which  are  made  by  a  parent  at  the  time  of  de- 
livering property  to  a  child  to  show  the  same  was  intended 
as  an  advancement  are  competent  to  prove  its  character, 
but  the  party  who  receives  the  gift  or  advancement  is  not 
a  competent  witness  in  his  own  behalf.^^ 

§  340.  Distribution  of  Estate  not  Bequeathed. — If  a  tes- 
tator make  an  unequal  distribution  of  his  estate  among  his 
children  by  his  will,  and  dies  possessed  of  property  not  dis- 
posed of,  such  unbequeathed  estate  must  be  distributed 
equally,  without  reference  to  the  mode  in  which  he  has 
made  his  will. 

§  341.  Illegitimate  Children. — Bastards  are  capable  of 
inheriting  and  transmitting  inheritance  on  the  part  of  their 
mother,  and  the  mother  may  inherit  from  her  bastard  child 
or  children,  in  like  manner  as  if  they  had  been  lawfully  be- 
gotten of  her.^*  And  she  may  maintain  an  action  for  dam- 
ages on  account  of  his  death  by  the  wrongful  act  of  an- 
other.^* If  a  man,  having  by  a  woman  a  child  or  children, 
afterward  marry  her,  and  recognize  such  child  or  children 
to  be  his,  they  will  thereby  be  legitimated.^"  The  issue  of 
all  marriages  decreed  null  in  law,  or  dissolved  by  divorce, 
is  legitimated^  The  children  of  an  illegal  marriage  entered 
into  in  good  faith  by  the  mother  will  inherit  and  are  legiti- 
mate, that  being  so  the  legal  widow  cannot  elect  to  take  one- 
half  of  her  husband's  estate  on  the  ground  that  he  died 
without  issue,  but  will  be  confined  to  dower  or  homestead.^^ 
An  adopted  child  will  inherit  as  well  as  other  children,  but 
the  estate  of  an  adopted  child  will  go  to  his  blood  relations, 
even  when  the  estate  which  descends  is  derived  from  the 
adopted  parent. ^^  The  issue  of  cohabitation  with  an  Indian 
woman  according  to  the  custom  of  the  tribe  to  which  she 

3  2  strode  v,  Beall,  105  Mo.  App.  495,  79  S.  W.  1019;  Lisles  v. 
Huffman,  88  Mo.  App.  14.3. 

3  3  Rev.  St.  1909,  §§  340,  341;  Bent's  Adm'r  v.  St.  Vrain,  30  Mo. 
268 ;    Moore  v.  Moore,  169  Mo.  432,  69  S.  W.  278,  5S  L.  R.  A.  451. 

8  4  Marshall  v.  Wabash  R.  Co.,  120  Mo.  275,  25  S.  W.  179. 

3  5  Rev,  St.  1909,  §  341;  Breidenstein  v.  Bertram,  198  Mo.  328,  95 
S.  W.  828. 

36  Rev.  St.  1909,  §  .342. 

37  Green  v.  Green,  126  Mo.  17,  28  S.  W.  752,  1008. 

3  8  Reinders  v.  Koppelmann,  68  Mo.  482,  30  Am.  Dec.  802;  In  re 
Moran's  Estate,  151  Mo.  555,  52  S.  W.  377. 


g  343  DISTRIBUTION   OF   ESTATE8  353 

belongs  is  legitimate.-'®  So  if  the  parents  sustain  the  rela- 
tion of  husband  and  wife  under  a  contract  of  marriage, 
though  they  do  not  marry  according  to  statutory  law,  their 
children  will  be  legitimate.*** 

§  342.  Colored  Fersons,  whether  of  free  or  slave  parents, 
if  residents  of  this  state,  are  entitled  to  distribution  in  the 
same  manner  and  proportions  as  other  persons ;  but  if  resi- 
dents of  some  other  state,  to  be  entitled  they  must  be  free. 
Children  of  slave  parents,  and  all  the  children  of  any  mother 
who  was  a  slave  at  the  time  of  their  birth  are  legitimate 
and  lawful  brothers  and  sisters  for  the  purposes  of  dis- 
tribution.-*^ 

§  343.  Distribution  of  Property  in  Kind  or  Proceeds 
Thereof. — If  personal  property  descend,  and  an  equal  divi- 
sion thereof  cannot  be  made  in  kind,  the  court  may  order  the 
sale  of  such  personal  property  (prescribing  the  time,  place, 
manner  and  terms  of  sale),  and  cause  the  money  to  be  distrib- 
uted according  to  the  rights  of  those  entitled  to  distribution. ■*- 

The  partition  or  division  of  the  property  should  be  applied 
for  by  those  entitled  thereto  by  petition,  and  all  interested 
should  join  in  the  application  or  be  made  parties  thereto. 

Form  of  Petition  for  Division  of  Personal  Property 

In  the  iMatter  of  the  Estate"] 

of  A.  B.,  deceased,       L  In  the  Probate  Court  of county. 

J.  D.,  administrator.  j 

The  petition  of  O.  B.,  .T.  B.,  and  M.  B.,  shows  to  the  court  that  A. 
B.,  late  of  said  county,  died  intestate  possessed  of  various  articles  of 
personal  property,  a  list  of  which  is  herewith  filed,  marked  exhibit 
"A,"  which  have  descended  under  the  law  in  equal  parts  to  these 
petitioners,  who  are  the  widow  and  children,  and  only  heirs  at  law 
of  the  deceased,  wlio  are  entitled  to  or  have  any  interest  in  said 
property;  that  the  estate  of  said  A.  B.  has  been  finally  settled,  leav- 
ing said  property  undisjiosed  of,  (or  state  such  facts  as  will  show 
that  the  petitioners  are  entitled  to  the  property) ;  that  an  equal  di- 
vision of  the  same  cannot  be  made  in  kind  between  said  petitioners, 
wherefore,  they  a.sk  the  court  to  order  said  property  to  be  sold  and 
the  money  arising  from  the  .sale  to  be  distributed  between  them  ac- 
cording to  their  rights  and  interests  in  the  same.  K.  &  D., 

Attorneys  for  Petitioners. 

30  Johnson  v.  Johnson's  Adm'r,  .30  Mo.  72,  77  Am.  Dec.  59S ;  Boyer 
V.  Dively,  58  Mo.  510. 

40  Dyer  v.  Brannock,  66  Mo.  .391,  27  Am.  Rep.  359;  Gates  v. 
Seibert,  157  Mo.  254,  57  S.  W.  1065. 

41  Rev.  St.  1900,  §§  .343,  344. 

42  Rev.  St.  1909,  §  247. 

Kel.:Mo.P.(;.— 2.3 


354  DISTRIBUTION   OF   ESTATES  §  344 

§  344.  Same — Appointment  of  Commissioners. — If  such 
property  may  be  divided  in  kind,  the  court  must  order  a  parti- 
tion thereof  among  the  parties  entitled ;  and,  for  that  purpose, 
the  court  must  appoint  three  commissioners,  disinterested,  and 
of  no  kin  to  the  parties,  whose  duty  it  shall  be,  after  first  mak- 
ing affidavit  that  they  will  honestly  and  impartially  discharge 
the  trust  reposed  in  them,  to  make  partition  as  equal,  in  kind, 
as  the  value  and  numbers  of  the  articles  of  property  will  ad- 
mit, and  report  their  proceeding  to  the  court  at  the  next  term 
thereof,  which  report  will  be  approved  by  the  court,  unless 
sufficient  objections  are  urged  for  its  rejection;  and,  if  reject- 
ed, the  court  must  appoint  other  commissioners,  as  often  as 
may  be  necessary,  until  a  report  shall  be  made  that  will  meet 
the  approval  of  the  court ;  and  all  such  subsequent  commis- 
sioners shall  make  affidavit,  and  proceed,  in  all  respects,  as  pro- 
vided by  law.'*^  The  foregoing  form  of  petition  may  be  modi- 
fied so  as  to  answer  for  a  petition  for  the  division  of  the  prop- 
erty in  kind. 

§  345.     Notice — Each  Person  Entitled  to  Distribution  or 

partition,  not  applying  therefor,  must  be  notified  in  writing  of 
the  application  ten  days  before  any  order  is  made ;  or,  if  such 
person  do  not  reside  in  the  state,  a  notice  of  such  application 
must  be  published  in  some  newspaper  in  the  state  four  weeks 
before  any  such  order  is  made.  An  order  of  distribution  with- 
out previous  notice  to  distributees  may  be  made  by  the  court 
at  any  final   settlement.** 

Notice  of  Application 

State  of  ,         I  jj^  ^j^g  Probate  Court  of County. 

County  of  .  J 

The  state  of to  E.  B.  greeting: 

You  are  hereby  notified  that  application  by  petition  has  been  made 

to  the  probate  court  of  county,  in  the  state  of  by  O. 

B.,  child  and  heir  at  law,  of  A.  B.,  deceased,  for  an  order  of  said 
court  for  division  or  partition  of  personal  property  of  said  A.  B., 
late  of  said  county,  deceased,  in  equal  parts  in  kind,  between  the 
said  O.  B.,  etc.,  as  the  widow  and  children,  only  heirs  of  said  de- 
ceased;   and  that  said  application  will  be  heard  at  the  court  house 


43  Rev.  St.  1909,  §  248;  Aull  v.  St.  Louis  Trust  Co.,  149  Mo.  1,  50 
S.  W.  289. 

44  Rev.  St.  1909,  §  2.50;  Lilly  v.  Menke.  126  Mo.  190.  28  S.  W.  64.3, 
994;  State  ex  rel.  Brouse  v.  Burnes,  121)  Mo.  App.  474.  107  S.  W. 
1004 ;  Baker  v.  Lumpee,  91  Mo.  App.  560 ;  State  ex  rel.  Green  v. 
Henderson,  164  Mo.  347,  61  S.  W.  1.38,  86  Am.  St.  Rep.  618. 


§  346  DISTRIBUTION   OF   ESTATES  355 

in  the of ,  the  county  seat  of  said  county,  on  the 

(lay  of  tlie  next  term  tliereof,  to  be  lield  on  the day  of , 

19 — ,  and  such  order  will  be  made  iu  the  premises  as  may  be  meet 
and  proper.  J-  R- 

(Style  of  oHice.) 

It  is  supposed  that  this  notice  may  be  given  and  returned  by 
any  party  interested  as  a  partitioner ;  but  it  would  be  better, 
perhaps,  to  let  the  judge  or  clerk  issue  it,  and  the  sheriff  ex- 
ecute it.  If  the  person  reciuiring  notice  is  a  non-resident  of 
the  state,  the  same  form  of  notice  may  be  published  in  a  news- 
paper. 

§  346.  Rights  of  Parties  to  be  Determined — Order  of 
Partition. — When  an  order  for  the  partition  and  sale  of  per- 
sonal property  is  made,  the  court  must  settle  the  claims  of  the 
distributees,  which,  if  notice  has  been  given,  is  binding  on  all 
l^arties  ;  and,  in  the  case  of  sales  of  such  property,  the  person 
selling  it  must  be  ordered  to  distribute  the  money  arising  there- 
from according  to  the  rights  of  each  person.  If  any  distributee 
become  a  purchaser  of  such  property,  his  receipt  for  the  amount 
of  his  share  will  be  received  in  payment  of  an  equal  amount 
of  the  purchase  money,  and  the  court  will  allow  the  amount 
of  such  receipt  as  so  much  distributed  under  the  order  of  the 
court.*^ 

If  the  court  finds  that  the  property  cannot  be  divided  in 
kind,  change  the  order  so  as  to  direct  it  to  be  sold  and  the  pro- 
ceeds divided. 

Order  of  Court  for  Partition  of  Personal  Property 

In  the  Matter  of  the  Estate  of  ) 
A.  B.,  deceased.  j 

Now  at  this  day  comes  O.  B.,  M.  B.  and  R.  B.,  children  and  heirs 

at  law.  and  N.  B..  widow  of  A.  B.,  late  at  county,  deceased. 

and  by  petition  ask  an  order  for  the  partition  and  division  iu  kind 
of  the  personal  property  of  the  deceased,  in  equal  portions  between 
them,  as  the  widow  and  only  heirs  of  said  deceased  entitled  to  share 
in  the  distribution  of  the  same.  And  it  appearins  to  the  court  that 
said  deceased  died  intestate,  possessed  of  the  personal  property  men- 
tioned in  said  petition,  and  that  the  estate  of  said  deceased  has  been 
finally  settled  (or  state  facts  showing  that  the  property  is  not  needed 
for  the  payment  of  debts),  and  said  property  has  descended  to  these 
petitioners  as  the  widow  and  children  and  heirs  at  law  of  said  de- 
ceased, and  that  they  are  entitled  to  distribution  of  the  same  in 
equal  portions.  It  is  therefore  ordered  by  the  court  that  partition 
and  division  be  made  of  said  property  in  kind  between  the  said  pe- 
titioners above  named  in  e(iual  portions. 

45  Rev.  St.  1009,  §§  2.")1.  2.-)2  :  Lilly  v.  Menke.  120  Mo.  190.  2S  S. 
W.  64.*?,  994;    State  ex  rel.  .Tones  v.  .Tones.  l.'U  Mo.  194.  :«  S.  W.  2."^. 


3oG  DISTRIBUTION   OF   ESTATES  §  346 

It  is  further  ordered  that  E.,  F.  and  G.,  who  are  disinterested  and 
of  no  kin  to  the  parties,  be  appointed  commissioners,  to  mal^e  par- 
tition, (first  making  affidavit  to  honestly  and  impartially  discharge 
the  trust  reposed  in  them)  of  said  property  between  said  parties,  as 
equal  in  kind  as  the  value  and  numbers  of  the  articles  of  property 
will  admit,  and  report  their  proceedings  to  this  court  at  the  next 
term  thereof. 

And  it  further  appearing  that  an  equal  division  of  said  property 
between  said  parties  cannot  be  made  in  kind,  it  is  therefore  ordered 
by  the  court  that  said  property  be  sold  at  public  sale,  at  the  premises 

of  the  late  A.  B.,  deceased,  in  said  county,  on  the  day  of 

,  19 — ,  between  the  hours  of  —  o'clock  a.  m.  and  —  o'clock 

p.  m.,  for  cash  in  hand;  ten  days'  notice  of  the  time,  place  and 
terms  of  sale  being  first  given  by  hand  bills  set  up  at  ten  different 
places  in  the  county,  and  that  the  money  arising  from  the  sale  of 
said  property  be  distributed  between  the  above  named  parties  in 
equal  portions.  (If  there  be  an  administrator  he  must  be  directed 
to  make  the  sale,  but  if  not,  the  court  may  appoint  some  other  dis- 
interested person  to  do  so,  and  require  him  to  disburse  the  money 
and  report  his  proceedings  to  the  court). 

And  it  is  further  ordered  that  A.  J.,  administrator  of  the  estate 
of  A.  B.,  deceased,  be,  and  he  is  hereby  authorized  to  execute  tliis 
order  by  selling  said  property  and  disbursing  the  proceeds  of  said 
sale  in  the  manner  herein  directed,  and  that  he  report  his  proceed- 
ings to  tins  court  at  the  next  term  thereof. 

§  347.  Same— By  Whom  Sold.— It  is  the  duty  of  the  ex- 
ecutor or  administrator  to  sell  the  property  and  distribute  the 
proceeds  according  to  the  order  of  the  court,  and  he  will  be 
held  to  his  official  bond  for  any  failure  to  apply  the  proceeds  of 
the  sale  according  to  the  order  of  the  court.'*'' 

And  when  the  executor  or  administrator  fails  to  pay  over 
money  to  the  widow,  heirs,  legatees  or  distributees  of  an  es- 
tate when  ordered  to  do  so,  the  same  proceedings  may  be  had 
against  him  and  his  sureties  to  compel  such  payment  as  may 
be  had  against  him  when  he  fails  to  pay  demands  allowed 
against  the  estate  when  ordered  to  do  so.*^ 

§  348.  Forms  Used  in  Making  Partition. — The  follow- 
ing forms  may  be  used  in  making  partition  in  kind  of  the 
personal  estate  among  the  heirs : 

Affidavit  of  Commissioners 

State  of ,   ^  gg 

County,  f 

E.,  F.  and  G.,  who  were  appointed  by  the  written  order  of  court  as 
commissioners  to  make  partition  in  kind  of  the  personal  property  of 

4c  Kev.  St.  1909.  §  259. 

47  Rev.  St.  1909,  §  254;  State  ex  rel.  Hospes  v.  Branch,  151  Mo. 
622,  52  S.  W.  390 ;  Clarice  v.  Sinks,  144  Mo.  44S,  46  S.  W.  199 ;  Kier- 
nan  v.  Robertson,  116  Mo.  App.  56,  92  S.  W.  13S. 


§  349  DISTRIBUTION   OF   ESTATES  357 

A.  B.,  deceased,  between  the  parties  therein  named,  in  equal  portions, 
do  solemnly  swear  that  they  will  honestly  and  inipartially  discharge 

the  trust  reposed  in  them.  E ^ 

F L  Commissioners. 

G J 

Subscribed  and  sworn  to  before  me,  this day  of ,  19 — . 

O.  K.,  Justice  of  the  Peace. 

Report  of  Counnissioners 

In  the  Matter  of  the  Estate  1  ^    *»     „     ,    *    r.       ..    * 

of  \  B     1  c  '•  s   1  r  Probate  Court  of county. 

We,  E.,  F.  and  G.,  ajipoiiited  by  the  probate  court  at  the  

term  thereof,  19 — .  conuiiissioners  to  make  partition  in  kind  of  cer- 
tain personal  projierty  of  A.  B.,  late  of  said  county,  deceased,  be- 
tween the  widow  and  children  and  heirs  at  law  of  said  deceased  in 
equal  i)ortions,  would  respectfully  submit,  that,  after  first  making 
affidavit  that  we  would  honestly  and  impartially  discharge  the  trust 
reposed  in  us,  we  did  make  partition  and  divide  said  property  be- 
tween said  parties  as  equal  in  kind  as  the  value  and  numbers  of  the 
articles  would  admit,  as  follows,  viz.: 

One  bay  mare  of  the  value  of $100.00 

One  red  cow  of  the  value  of .30.00 

One  sow  and  seven  pigs  of  the  value  of I'O.OO 

$150.00 
We  set  off  and  assign  to  M.  A.,  the  widow. 

One  sorrel  hor.se  of  the  value  of $80.00 

One  bay  colt  of  the  value  of 50.00 

One  saddle  of  the  value  of 10.00 

One  ritle  gun  of  the  value  of 8.00 


We  set  off  and  assign  to  O.  B.,  etc.,  etc. 


$148.00 


All  of  which  is  respectfully  submitted.    E "^ 

F Y  Commissioners. 

G J 

Order  Approving  Report 

In  the  Matter  of  the  Estate  of  ^  ^.   .  . 

•    „     1  1  V  Division  of  property. 

A.  B.,  deceased.  J  f    >.      j 

On  this  day  come  E.,  F.  and  G..  commissioners  heretofore  appoint- 
ed by  this  court  to  partition  certain  personal  property  of  A.  B.,  de- 
ceased, between  his  widow  and  children  in  equal  portions  in  kind, 
and  submit  their  report  of  their  proceedings  in  the  premises,  and  the 
court  having  inspected  the  same,  and  no  sufficient  objections  being 
urged  for  its  rejection,  the  report  is  accepted  and  approved  by  the 
court,  and  ordered  of  record. 

§  349.  When  Debts  have  been  Paid  out  of  Real  Estate. — 
If  real  estate  be  sold  for  the  i:»aynient  of  debts  in  lieu  of  the 
personal  estate  under  the  law,  the  court  in  making;-  distribu- 


358  DISTRIBUTION   OF   ESTATES  §  350 

tion  of  personal  estate  reserved,  must  cause  the  same  to  be 
appraised  by  three  disinterested  persons,  sworn  for  that 
purpose,  and  shall  allow  to  the  widow  only  such  amount  as 
she  would  have  been  entitled  to  had  the  amount  of  debts 
paid  by  money  by  the  sale  of  real  estate,  been  paid  out  of 
the  personal  estate.*^ 

§  350.  Disputed  Questions — How  Settled. — In  ordinary 
cases  there  will  be  no  difficulty  about  this  proceeding-  for 
the  partition  and  distribution  of  personal  property.  Gener- 
ally the  parties  entitled  are  known  as  the  heirs  of  the  dece- 
dent, and  present  themselves  in  person,  or,  if  minors,  by 
guardian,  and  on  application,  and  upon  slight  proof,  the 
court  orders  the  distribution  and  payment.  In  some  in- 
stances, however,  there  may  be  doubts  of  the  heirship. 
Questions  arise  as  to  the  recognition  by  the  deceased  parent 
of  children  born  before  marriage ;  questions  of  adoption, 
under  the  statute,  by  which  adopted  children  are  clothed 
with  the  rights  of  heirs  may  be  raised ;  and  other  cases  may 
occur,  in  which  claims  to  heirship  may  be  contested.  In 
such  a  case,  the  person  whose  right  is  questioned  should  file 
an  application  asking  to  share  in  said  estate,  to  which  an 
answer  may  be  filed  by  others  interested  in  the  distribution  ; 
or,  he  may  file  an  answer  or  application  in  connection  with 
that  of  the  other  parties,  and  issues  may  be  joined  and  ques- 
tions of  law  and  fact  be  tried  in  the  usual  way. 

Distribution  to  nonresident  or  foreign  heirs  may  be  made 
to  residents,  holding  powers  of  attorney,  properly  authenti- 
cated and  executed  by  such  nonresident  heirs  and  distribu- 
tees, or  to  their  administrators,  guardians  or  curators,  ap- 
pointed in  accordance  with  the  laws  of  such  state,  territory 
or  foreign  country.'*" 

§  351.  When  Minors  Not  Residents  of  the  County  Are 
Interested. — When  application  is  made  for  the  distribution 
of  personal  property,  and  it  appears  by  the  affidavit  of  the 
applicant  or  other  person  interested,  that  there  is  an  infant 
or  infants  interested  in  such  property,  who  are  not  resi- 
dents of  the  county,  and  who  have  no  legally  constituted 
guardian  or  curator,  it  is  the  duty  of  the  court  to  appoint 
a  guardian  ad  litem  for  such  infant  or  infants.'^''  A  guard- 
ian ad  litem  is  one  who  is  appointed  to  act  as  a  guardian 
of  an   infant   during  the   pendency  of  the  particular  suit  or 

4  8  Rev.  St.  1009,  §  25.3.  eo  Kev.  St.  1909,  §  208. 

4  0  Law.s  1911,  I).  8G,  §  1. 


§  352  DISTRIBUTION   OF    ESTATES  359 

proceeding  in  wliicli  the  minor  is  interested  as  a  party. 
Such  guardian,  when  so  appointed,  has  the  same  powers  as 
a  guardian  ad  litem,  appointed  under  the  law  concerning 
partition,  and  must  enter  into  bond  with  like  effect  and 
with  the  same  conditions  as  therein  provided. '^^  He  is  en- 
titled to  compensation  for  his  services. ^■- 

For  all  the  pur])oses  of  the  particular  suit  or  proceeding 
the  guardian  ad  litem  has  the  same  power  as  any  general 
guardian.  He  may  bind  his  ward  by  any  stipulation  he 
may  deem  proper  for  the  disposition  of  the  matters  involv- 
ed in  the  case.^^  On  appointing  such  a  guardian  of  any 
minor  entitled  to  moneys  arising  from  the  sale  of  property 
the  court  must  require  of  him  a  bond  to  the  state  with  such 
security  as  the  court  may  deem  sufficient,  conditioned  for 
the  faithful  discharge  of  the  trust  committed  to  him,  and 
to  render  a  just  and  true  account  of  such  guardianship  in 
all  courts  and  places  when  thereto  lawfully  required.'* 

The  guardian  ad  litem  must  receive  the  moneys  or  prop- 
erty which  may  be  distributed  or  set  apart  to  his  ward,  and 
must  hold  and  manage  the  same  in  like  manner  and  on  like 
conditions  as  a  general  guardian  or  curator,  and  must  in  all 
things  be  governed  by  the  same  rules,  as  far  as  the  same 
be  applicable.^'  Distribution  to  nonresidents  or  foreign 
heirs  or  distributees  may  be  made  to  residents  holding  pow- 
er of  attorney  properly  authenticated  and  executed  by  such 
nonresident  heirs  or  distributees,  etc.'"  If  the  minor  has 
another  curator  in  any  county  in  the  state  where  he  resides, 
the  court  may  order  the  transfer  of  all  moneys,  property 
and  effects  to  such  regular  curator,  with  like  effect  and  on 
the  same  conditions  as  provided,  in  the  law^  concerning 
guardians  and  curators.'^ 

§  352.  Refunding  by  Legatee  or  Distributee, — If,  after 
the  payment  of  the  legacies  or  distributions,  it  becomes  nec- 
essary that  the  same,  or  any  part  thereof,  be  refunded  for 

ei  Rev.   St.  1909,  §  2(;D. 

6  2  Jones  V.  Yore,  15S  Mo.  8.3,  57  S.  W.  1135. 

63  Le  Bourgeoise  v.  MeNaiuara,  82  Mo.  189;  State  ex  rel.  Rice 
V.  Cayee,  85  Mo.  456:  Payne  v.  Masek,  114  Mo.  031.  21  S.  W.  751: 
Le  Bourgeoise  v.  McNaniara,  10  Mo.  App.  IIG :  Rolf  v.  Timiuer- 
mei.ster,  15  Mo.  Api).  247. 

54  Rev.  St.  1909.  §  2508;    Ely  v.  Owuby,  59  Mo.  438. 

6  5  Rev.  St.  1909,  §  270. 

6  0  Laws  1911.  p.  80,  §  1. 

6  7  Tmws  1911,  p.  80,  §  1. 


360  DISTRIBUTION   OF    ESTATES  §  352 

the  payment  of  debts,  the  court,  on  application,  must  appor- 
tion the  same  among  the  legatees  or  distributees,  according 
to  the  amount  received  by  them,  except  that  specific  lega- 
cies shall  not  be  required  to  be  refunded,  unless  the  residue 
be  not  sufficient  to  satisfy  such  debts.^^  This  order  should 
be  made  before  final  settlement.^'' 

We  have  elsewhere  shown  that  in  the  disbursement  of  the 
effects  and  moneys  of  an  estate,  specific  legacies  must  be 
paid  before  general  legacies,  and  general  legacies  before 
distributees,  it  follows,  therefore,  that  these  persons  will  be 
required  to  refund  in  the  inverse  order;  that  is,  distributees 
must  refund  all  they  have  received,  if  necessary,  before  a 
general  legatee  can  be  called  on,  and  then,  general  legatees 
must,  if  necessary,  refund  all  they  have  received  before  spe- 
cial legatees  will  be  required  to  refund.  And  each  class  of 
these  will  be  required  to  refund  such  a  proportionate  part 
of  what  they  have  received,  as  will  be  sufficient  to  satisfy 
the  debts. 

Order  for  Refunding 

In  the  Matter  of  the  Estate  of^ 
A.  B.,  deceased.  j 

Now  comes  A.  D.,  administiutor  of  said  estate,  and  shows  to  the 
court  that  he  has  disbursed  all  the  assets  belonging;  to  said  estate, 
and  that  there  are  debts  due  from  said  estate  remaining  unpaid  to 
the  amount  of  .$300,  for  the  payment  of  which  there  are  no  assets 

in  his  hands ;  that  on  the day  of ,  19 — ,  upon  the  order 

of  this  court,  he  paid  out  and  distributed  to  the  following  children 
and  heirs  of  said  deceased,  the  following  sums  for  which  he  took 
their  receipts,  viz.: 

To  G.  B.,  the  sum  of    $300.00 

To  S.  H.,  the  sum  of    300.00 

To  H.  B.,  the  sum  of   300.00 

It  is  therefore  ordered  by  the  court  that  each  of  said  distributees 
shall  refund  and  pay  to  said  administrator  the  sum  of  one  hundred 
dollars,  for  the  liquidation  of  said  indebtedness. 

§  353.  If  a  legatee  or  distributee  fail  to  refund,  accord- 
ing to  such  order,  on  motion  of  the  executor  or  administra- 
tor, the  court  shall  (ten  days'  notice  in  writing  having  been 
given  to  the  legatee  or  distributee  in  default)  enter  judg- 
ment for  the  amount  apportioned  to  him.®" 

6  8  Rev.  St.  1009,  §  2.5.5. 

5  9  Rum.sey  v.  Otis,  1.33  Mo.  85,  34  S.  W.  551. 

60  Rev.  St.  1909,  §  255. 


§  354  DISTRIBUTION   OF   ESTATES  361 

Notice  to  Distributee  of  Motion  for  Judcpnent 


State  of 


County. 


To  G.  B.:    Whereas,  at  the teriu,  19—,  of  the  probate  court 

of county,  on  application  of  A.  D.,  adiriiuistrator  of  the  estate 

of  A.  B.,  deceased,  it  was  ordered  by  said  court  that  G.  B.,  S.  B., 
and  II.  B.,  who  had  each  received  the  sum  of  three  hundred  dolhirs 
as  distributees  of  said  estate  should  each  refund  and  pay  to  said 
administrator  the  sum  of  one  hundred  dollars  to  liquidate  the  debts 
of  said  estate;  and,  whereas,  you,  the  said  G.  B.,  have  failed  and 
refused  to  comply  with  said  order;  you  are  therefore  notified  that, 
on  the  first  day  of  the  next  term  of  the  probate  court  of  said  county, 

to  be  held  at  the  court  house  In  the  city  of  ,  in  said  county, 

on  Monday  the  day  of  July,  19 — ,  (or  as  soon  thereafter  as  I 

can  be  heard),  shall  move  said  court  to  enter  judgment  against  you 
for  the  sum  of  one  hundred  dollars  with  interest  and  costs. 

Dated  this day  of ,  19—.  A D , 

Administrator  of  the  estate  of 
A.  B.,  deceased. 

Judgment  Against  Distributee 

In  the  Matter  of  the  Estate  1   ,,  ^. 

„    .     „      ,  ,  I  Motion  for  judgment, 

of  A.  B..  deceased.  ( 

Now  at  this  day  comes  A.  D.,  administrator  of  tlie  estate  of  A.  B., 
and  also  G.  B.,  an  heir  and  distributee  in  said  estate;  and  the  mo- 
tion in  this  behalf  coming  on  to  be  heard ;    and,  it  appearing  in  the 

court  at  the  term,  19—,  of  this  court,  on  the  application  of 

said  administrator,  it  was  ordered  by  the  court  that,  G.  B.,  S.  B. 
and  11.  B.,  who  had  each  received  the  sum  of  three  hundred  dollars 
upon  the  order  of  this  court  as  heirs  and  distributees  of  said  estate, 
should  each  refund  and  pay  to  said  administrator  the  sum  of  one 
hundred  dollars  to  licpiidate  the  indebtedness  of  said  estate;  and  it 
further  appearing  that  said  G.  B.  has  failed  to  refund  said  one  hun- 
dred dollars.  (If  the  distributee  does  not  appear,  say:  and  that  he 
has  had  notice  in  writing  of  this  motion  more  than  ten  days  before 
the  first  day  of  the  present  term  of  this  court.)  It  is  therefore  ad- 
judged by  the  court,  that  A.  D.,  as  such  administrator,  do  have  and 
recover  of  and  from  the  said  G.  B..  the  sum  of  one  hundred  dollars, 
so  ordered  by  the  court  as  aforesaid  to  be  paid  by  him  to  said  ad- 
ministrator,  together  with  his  costs  and   charges  herein  paid,   laid 

out  and  expended,  taxed  at dollars  and cents,  and  that 

execution  issue  therefor. 

§  354.  Distribution  or  Allowance  for  Support  of  Chil- 
dren.— The  court,  as  occasion  may  re(inire,  may  order  such 
appropriations  for  the  support  of  each  minor  child  of  the 
deceased,  not  otherwise  provided  for,  as  will  not  prejudice 
the  rights  of  creditors ;    and  the  court  shall  allow  such  ap- 


362  DISTRIBUTION    OF    ESTATES  §  355 

propriations  as  so  much  distributed  to  such  minor  child.^^ 
The  sums  thus  appropriated  for  the  benefit  of  each  child 
should  be  kept  separately,  and  in  making  final  distribution 
must  be  included  in  and  charged  as  a  part  of  the  distribu- 
tive share  of  such  child. ^-  This  provision  is  limited  to  the 
children  of  an  intestate,  at  least  such  order  must  not  inter- 
fere with  the  provisions  of  a  will.""^ 

§  355.  Widow's  Share  of  Rents. — Until  the  widow's 
dower  be  assigned  the  court  must  order  such  sum  to  be 
paid  to  her  out  of  the  rents  of  real  estate  as  shall  be  in  pro- 
portion to  her  interest  in  the  real  estate."*  She  may  occupy 
the  home  free  of  rent  until  dower  is  assigned."^ 

§  356.  Disposition  of  Legacy  or  Distributive  Share  When 
Not  Called  For. — If,  upon  final  settlement,  there  is  a  bal- 
ance on  hand  belonging  to  a  legatee  or  distributee  who  is 
a  nonresident,  or  from  any  other  cause  is  not  in  a  situation 
to  receive  his  share,  and  give  a  discharge  therefor,  or  does 
not  appear  by  himself  or  agent  to  receive  the  same,  such 
real  and  personal  estate  shall  escheat  and  vest  in  the  state, 
subject  to  further  disposition. ««  In  all  cases  when  the  leg- 
atee or  distributee  shall  not  appear  within  one  year  after 
final  settlement  by  the  executor  or  administrator  and  claim 
his  share,  the  court  shall  order  the  same  to  be  paid  into  the 
state  treasury.  When  any  share  shall  be  paid  into  the 
state  treasury,  the  executor  or  administrator  shall  take 
from  the  treasurer  duplicate  receipts,  one  of  which  he  shall 
file  in  the  office  of  the  auditor,  who  shall  credit  him  with 
the  amount,  and  charge  the  state  treasurer  therewith,  and 
the  other  with  the  clerk  of  the  court  ordering  the  share  to 
be  paid  into  the  treasury,  and  the  court  shall  credit  the  ex- 
ecutor or  administrator  therewith."  But  if  the  money  is 
not  paid  into  the  state  treasury,  the  prosecuting  attorney 
upon  giving  ten  days'  previous  notice,  move  for  a  judgment 
against  such  executor  or  administrator  for  such  moneys, 

61  Rev.  St.  1900,  §  256. 

«2  Bailey  v.  Trustees  of  lyincoln  Academy,  12  Mo.  178;  Rurasey  v. 
Otis,  133  Mo.  85,  34  S.  W.  551. 

6  3  Richardson  v.  Frederitze,  .35  Mo.  2G6;  Clark  v.  Bettelheim,  144 
Mo.  258,  46  S.  W.  135. 

6  4  Rev.  St.  1900,  §  257;  Tincher  v.  Phillips.  .37  Mo.  App.  621; 
Wigley  V.  Beauchamp,  51  :Mo.  544;  Gentry  v.  Gentry,  122  Mo.  202, 
26  S.  W.  1090 ;    Keeney  v.  McVoy,  206  Mo.  42,  103  S.  W.  946. 

6  5  Smith  V.  Stephens,  164  Mo.  415,  64  S.  W.  260. 

6  6  Rev.   St.  1009,  §  6256.  c7  Rev.  St.  1909,  §  6257. 


§  358  DISTRIBUTION    OF    ESTATES  3G3 

with  eight  per  cent,  per  annum  from  the  time  it  should  have 
been  paid  into  the  treasury,  and  the  court  shall  determine 
the  case  in  a  summary  manner,  and  if  it  finds  the  facts  stat- 
ed in  the  motion  to  be  true  and  no  valid  excuse  is  offered 
for  the  delay,  shall  enter  judgment  accordingly.*^^ 

§  357.  Same. — Within  twenty-one  years  after  the  money 
has  been  paid  into  the  treasury  any  person  claiming  the 
same  may  file  his  petition  in  the  court  in  which  the  settle- 
ment was  made,  stating  the  nature  of  his  claim  and  praying 
that  such  money  be  paid  to  him.  and  a  copy  of  the  petition 
must  be  served  on  the  prosecuting  attorney,  who  must  file 
answer.  The  court  will  examine  the  claim  and  hear  the 
proofs,  and  if  it  finds  that  he  is  entitled  to  the  money,  will 
order  the  state  auditor  to  issue  his  warrant  on  the  state 
treasurer  for  the  amount  of  the  claim,  without  interest  or 
costs.  A  copy  of  which  order,  under  the  seal  of  the  court 
shall  be  a  sufficient  voucher  for  issuing  the  same.®® 

§  358.  Estates  Escheat — Real  Estate. — If  any  person  die 
intestate  seized  of  any  real  or  personal  property,  leaving  no 
heirs  or  representatives  capable  of  inheriting  the  same,  such 
real  and  personal  property  shall  escheat  and  vest  in  the 
state.  And  when  the  prosecuting  attorney  has  reason  to 
believe  that  any  real  estate  in  his  county  has  escheated  to 
the  state  and  has  not  been  sold  within  five  years  after  the 
death  of  the  person  last  seized  for  the  payment  of  debts  of 
the  deceased,  he  must  file  an  information  in  behalf  of  the 
state  in  the  circuit  court  setting  forth  a  description  of  the 
estate,  etc.,  etc.,  and  proceed  with  the  case  as  directed  in 
Chapter  XLV,  entitled  Escheats. 

Within  five  years  after  judgment  has  been  rendered  any 
])crson  not  served  or  who  did  not  appear  to  the  proceed- 
ings, their  heirs  or  assigns,  may  appear  and  claim  the  land 
and  file  their  petition  in  the  circuit  court,  setting  forth  the 
nature  of  his  claim  and  praying  that  said  estate  may  be  re- 
linquished to  him.  A  copy  of  the  petition  must  be  served 
on  the  prosecuting  attorney,  who  must  file  answer  thereto  ; 
and  if  it  shall  appear  upon  the  hearing  of  the  allegations 
and  proofs  that  such  person  has  a  good  claim,  title  or  inter- 
est in  such  estate,  the  court  will  decree  accordingly,  divest- 
ing the  state  of  any  interest  therein,  without  costs  against 

68  Rev.  St.  lOno,  §  625S. 

69  Rev.  St.  190n,  §§  6259,  6260;   In  re  Bomino's  Estate.  S3  Mo.  433. 


364  DISTRIBUTION    OF    ESTATES  §  359 

the  state.  After  five  years  all  persons  except  those  under 
legal  disability,  shall  be  barred  from  setting  up  any  claim 
to  such  estate.  Any  such  real  estate  may  be  sold  by  order 
of  the  circuit  court,  and  the  proceeds,  after  paying  costs, 
shall  be  paid  into  the  state  treasury,  etc.,  etc.  All  moneys 
so  paid  into  the  treasury  after  remaining  there  unclaimed 
for  twenty-one  years  will  be  escheat  and  vest  in  the  state, 
and  may  be  transferred  to  the  public  school  fund.^° 

§  359.  Absent  for  Seven  Years. — If  any  person  who  has 
been  or  now  is  a  resident  of  this  state  has  gone  and  not  re- 
turned or  shall  hereafter  go  from  and  not  return  to  this 
state  for  seven  consecutive  years  or  so  conceals  or  conducts 
himself  that  he  has  not  been  heard  of  for  seven  consecutive 
years  by  the  judge  or  heirs,  and  he  does  not  make  himself 
or  his  whereabouts  known  to  the  court  or  heirs  within  two 
years  after  notice  of  his  supposed  death  shall  have  been 
published  in  some  newspaper  in  the  county  where  said  es- 
tate is  situate,  he  will  be  presumed  to  be  dead,  unless  proof 
be  made  that  he  was  alive  within  that  time,  and  if  letters 
be  granted  upon  the  estate  of  such  person  all  payments  of 
money  and  delivery  of  property  to  the  executor  or  admin- 
istrator by  debtors  or  those  having  such  property  or  effects, 
shall  be  a  bar  to  all  actions  or  claims  of  such  absent  person, 
his  heirs  or  assigns  against  the  persons  so  paying  or  deliv- 
ering the  same.'^^  Before  the  statute  was  amended  in  1899 
it  did  not  apply  to  a  person  who  was  last  seen  in  this  state 
and  was  not  known  to  have  left  the  state,  but  now  whether 
he  is  absent  from  the  state  or  conceals  or  conducts  himself 
so  that  he  has  not  been  heard  of  and  does  not  make  his 
whereabouts  known  within  two  years  after  notice  of  his 
supposed  death  has  been  published  in  some  newspaper  in 
the  county,  he  will  be  presumed  to  be  dead.'^^  At  common 
law  an  absence  and  being  unheard  of  for  seven  years  raises 
the  presumption  of  death. ''^ 

7  0  Rev.  St.  1900,  §§  G261,  G262,  6278. 

71  IJev.  St.  1909,  §§  271,  6340. 

72  Dickens  v.  Miller,  12  Mo.  App.  408;  Flood  v.  Growney,  126  Mo. 
262,  28  S.  W.  SGO ;  Biegler  v.  Supreme  Council  of  American  Legion 
of  Honor,  .57  Mo.  App.  419. 

7  3  Flood  V.  Growney,  126  Mo.  262,  28  S.  W.  860. 


§  360        ESTATES  OF  NONRESIDENTS,  HOW  ADMINISTERED      365 


CHAPTER  XXVII 

ESTATES    OF    NONRESIDENTS,    IIUW    ADMINISTERED    AND 
DISTRIBUTED 

§  3f)0.  What  law  governs  in  the  transfer  of  property. 

301.  Rights  of  foreign  administrator. 

'M'2.  Law  of  (louucil  governs  the  distribution  of  personal  estate. 

30.3.  Same — As  to  both  real  and  personal  estate  after  payment  of 
local  debts. 

304.  When  the  estate  is  insolvent. 

305.  Same — All  creditors  to  share  oqnaliy,  etc. 

In  a  former  chapter  of  this  work  we  have  presented  the 
law  in  relation  to  foreign  wills. ^  We  deem  it  proper  to 
submit  a  few  general  observations  in  this  chapter  as  to  the 
manner  in  which  the  property  of  nonresidents  found  in 
Missouri  should  be  administered  and  distributed. 

§  360.  What  Law  Governs  in  the  Transfer  of  Property. 
— It  is  a  maxim  that  may  be  regarded  as  universal,  that 
every  nation  possesses  an  exclusive  sovereignty  and  juris- 
diction within  its  own  territory.  It  is  a  consequence  of  this 
rule  that  the  laws  of  every  state  affect  all  property  within 
its  territory ;  and  all  persons  who  are  residents  within  it, 
whether  natural  born  or  aliens.  A  state,  therefore,  may 
regulate  the  manner  and  circumstances  under  which  prop- 
erty within  its  boundaries  shall  be  transmitted  or  bequeath- 
ed.- "And,"  says  Judge  Story,  "in  regard  to  the  title  of  ex- 
ecutors and  administrators,  derived  from  a  grant  of  admin- 
istration in  the  country  of  the  domicil  of  the  decedent,  it 
is  to  be  considered  that  the  title  cannot  extend,  as  a  matter 
of  right,  beyond  the  territory  of  the  government  which 
grants  it,  and  the  movable  property  therein."  An  adminis- 
trator derives  his  authority  to  administer  the  assets  of  his 
intestate  from  the  laws  of  the  state  in  which  he  is  appoint- 
ed, and  those  laws  have  no  extra  territorial  force,  but  if 
he  collects  a  debt  in  another  state  he  must  account  for  it.^ 
As  to  movable  property  situated  in  foreign  countries,  the 
title,  if  acknowledged  at  all,  is  acknowledged  out  of  curte- 

1  Ante,  chapter  IX. 

2  Story's  Coiif.  Laws,  §  18 ;  McCoy  v.  Farmer.  0.5  INIo.  244 ;  Nay- 
lor's  Adm'r  v.  ."Moffatt,  29  Mo.  126. 

K  Mcl'ike  V.  McPike,  111  .Mo.  216,  20  S.  W.  12;  Emmons  v.  Gor- 
don, 140  Mo.  490,  41  S.  W.  908.  62  Am.  St.  Rep.  734. 


366        ESTATES  OF  NONRESIDENTS,  HOW  ADMINISTERED      §  361 

sy;  and  is,  of  course,  subject  to  be  controlled  or  modified, 
as  every  nation  may  think  proper,  with  reference  to  its  own 
institutions,  and  its  own  policy,  and  the  rights  of  its  own 
subjects.  It  is  established,  in  conformity  to  this  principle, 
that  although  different  administrations  are  granted  in  dif- 
ferent countries,  that  administration  is  deemed  the  princi- 
pal or  primary  one  which  is  granted  in  the  country  of  the 
decedent's  domicil,  yet  each  portion  of  the  estate  must  be 
administered  in  that  country  in  which  possession  of  it  is 
taken  and  held  under  lawful  authority.  Therefore  letters 
may  be  granted  at  the  instance  of  a  creditor  of  the  estate 
of  a  nonresident  leaving  only  real  estate  here,  although  his 
estate  is  solvent  and  administration  is  taken  out  in  the  state 
where  he  resided,^  or  whether  letters  have  been  granted  in 
the  state  in  which  he  resided  or  not.^  And  when  the  prin- 
cipal administration  was  in  another  state  and  letters  were 
taken  out  in  Missouri  by  the  same  person,  it  was  held  that 
the  administrator  was  not  liable  on  the  bond  given  here 
for  the  proceeds  of  land  sold  in  the  other  state  under  the 
principal  administration,  although  the  money  was  brought 
into  this  state." 

§  361.  Rights  of  Foreign  Administrator. — The  adminis- 
trator under  a  foreign  grant  has  a  right  to  hold  the  assets 
received  under  it  against  the  home  administrator.  The  on- 
ly mode,  perhaps,  of  reaching  such  assets  is  to  require 
their  transmission  or  distribution,  after  all  claims  against 
the  foreign  administration  have  been  duly  discharged. 
And,  although  the  right  of  the  home  executor  or  adminis- 
trator to  an  auxiliary  probate,  or  grant  of  administration 
in  a  foreign  country,  is  usually  admitted  by  the  comity  of 
nations,  as  a  rule  of  course,  yet  this  new  administration  is 
made  subservient  to  the  rights  of  creditors  and  other  claim- 
ants resident  in  the  country  where  it  is  granted ;  and  the 
surplus  is  transmissible  to  the  country  of  the  original  ad- 
ministration only  when  a  final  account  has  been  settled  in 
the  proper  tribunal  where  the  new  administration  is  grant- 
ed."    Thus,  it  has  been  held  in  New  York  that  in  closing 

4  Prescott  V.  Durfee,  131  Mass.  477 ;  Bealey  v.  Smith,  158  Mo.  515, 
59  S.  W.  984,  81  Am.  St.  Rep.  317. 

0  Wood  V.'  Matthews,  73  Mo.  477. 

c  State  ex  rel.  Lifr^ett  v.  Osboni,  71  Mo.  86 ;  Emmons  v.  Gordon, 
140  Mo.  490,  41   S.  W.  998,  G2  Am.  St.  Rep.  734. 

7  Williams'  Ex'rs,  1414 ;  Parson  v.  Lyman,  4  Brad.  Sur.  (N.  Y.) 
268;  State,  to  Use  of  Adams,  v.  Campbell,  10  Mo.  724;  Spraddling 
V.  Pipkin.  15  Mo.  118. 


§  361        ESTATES  OF  NONRESIDENTS,  IIOW  ADMINISTERED        367 

what  is  sometimes  called  an  auxiliary  administration,  that 
is,  an  administration  in  a  state  or  country  where  the  dece- 
dent had  assets,  in  aid  of  the  principal  administration, 
granted  in  the  state  or  country  where  he  had  his  domicil, 
the  rights  of  the  creditors,  legatees  and  distributees,  resid- 
ing where  such  auxiliary  administration  was  granted,  are 
protected  and  enforced ;  the  residue  will  not  generally  be 
transmitted  to  the  administrator  abroad,  until  the  final  ac- 
count has  been  settled  with  a  due  regard  to  the  rights  of 
all  parties  claiming  to  have  their  shares  retained  and  dis- 
tributed.® It  follows,  therefore,  that  an  executor  or  admin- 
istrator appointed  in  this  state  has  no  authority  over  assets 
in  another,  beyond  what  is  accorded  by  the  comity  practic- 
ed between  enlightened  nations,  or  by  the  statute  law  of 
the  state  where  he  desires  to  pursue  the  assets ;  and  no  ex- 
ecutor or  administrator  from  abroad  has  any  greater  rights 
when  coming  into  this  state.''  In  general,  a  foreign  admin- 
istrator cannot  maintain  an  action  in  Missouri,^**  but  when 
a  local  administrator,  on  final  settlement,  is  ordered  to  pay 
the  estate  over  to  a  foreign  executor  by  name,  such  foreign 
executor  may  sue  for  the  amount  in  his  own  name.^^  The 
only  exception  to  the  rule  that  a  foreign  domiciliary  admin- 
istrator has  no  capacity  to  .-^ue  in  Missouri  is  in  the  case  of 
statutory  actions  brought  by  such  an  administrator  in  a  rep- 
resentative capacity.^ - 

While  a  foreign  administrator  is  without  legal  capacity 
to  maintain  an  action  in  this  state  on  a  judgment  recovered 
by  his  intestate,  he  may  sue  in  his  own  name  on  a  judg- 
ment he  has  recovered  against  a  debtor  to  his  intestate  who 
afterwards  removes  to  Missouri. ^^  It  has  been  held  that, 
regardless  of  the  fact  that  no  creditors  of  the  deceased  are 
resident  of  iSIissouri,  a  foreign  administrator  is  without  au- 
thority to  receive  payment  from  a  debtor  resident  in  Mis- 

8  Parson  v.  Lyman,  4  Brad.  Sur.  (N.  Y.)  208. 

9  State,  to  rse  of  Adams,  v.  Campbell.  10  Mo.  724;  Morton  v. 
Hatch,  54  Mo.  408 ;  In  re  Ames'  Estate.  52  ilo.  290 ;  Deuny  v.  Faulk- 
ner, 22  Kan.  89,  90. 

10  Morton  v.  Hatch.  54  Mo.  408;  Gregory  v.  Mfrormiok,  120  Mo. 
657,  25  S.  W.  5G5;  Naylor's  Adm'r  v.  Moffatt,  29  Mo.  126;  Merike 
V.  McPike,  111  Mo.  216,  20  S.  AY.  12;  Stevens  v.  Larwill.  110  Mo. 
App.  140,  84  S.  W.  113. 

11  State,  to  Use  of  Minot.  v.  Kaime,  4  Mo.  App.  479;  Sommer  v. 
Franklin  Bank,  108  Mo.  App.  490.  8:}  S.  W.  1025. 

12  Rev.  St.  1909,  §§  1737,  173S.     See  ante,  §  241. 

13  Miller  v.  Hoover,  121  Mo.  App.  568,  97  S.  W.  210. 


368        ESTATES  OF  NONRESIDENTS,  HOW  ADMINISTERED       §  362 

souri.  And  such  payment  to  a  foreign  domiciliary  admin- 
istrator will  constitute  no  defense  to  a  suit  brought  on  the 
same  demand  by  a  resident  ancillary  administrator  subse- 
quently appointed.  This  subject  is  treated  at  greater  length 
in  section  241,  ante.^* 

§  362.  Law  of  Domicil  Governs  the  Distribution  of  Per- 
sonal Estate. — The  general  rule  of  law  is,  that  personal 
property  belonging  to  decedents'  estates  is  to  be  distribut- 
ed in  the  mode  required  by  the  law  of  the  place  where  the 
decedent,  at  the  time  of  his  death,  had  his  domicil.  This 
doctrine  grows  out  of  the  principle  that  personal  property 
attends  the  person  of  the  owner,  wherever  he  may  have  his 
fixed  residence.  The  place  of  residence  is  ordinarily  the 
domicil  of  the  deceased;  but  it  must  be  a  permanent,  not 
merely  an  occasional  or  temporary  residence.  If  a  citizen 
of  a  foreign  country,  dwelling  here  for  a  temporary  purpose, 
die  with  personal  property  within  the  jurisdiction  of  our 
courts,  or,  if  personal  property  of  one  who  dies  with  his  dom- 
icil in  a  foreign  country  is  within  the  jurisdiction  of  our 
courts,  it  will  be  subject  to  administration  here,  for  the  pur- 
pose of  paying  such  debts  as  may  exist  in  this  country;  but 
the  residue  will  be  subject  to  distribution  according  to  the 
law  of  the  domicil,  and  is  to  be  remitted  to  the  administra- 
tor there. ^^  As  a  rule,  the  domicil  of  the  husband  is  the 
domicil  of  the  wife,  and  her  domicil  follows  that  of  her  hus- 
band, whether  she  accompanies  him  or  not.'-^  Thus,  a  man 
living  in  New  York  married  a  woman  who  resided  in  St. 
Louis.  She  gave  him  a  check  for  money.  He  returned 
home  with  it,  leaving  his  wife  in  St.  Louis,  who  had  some 
business  to  arrange  before  leaving  for  New  York.  In  the 
meantime  she  died.  An  administrator  was  appointed  in  St. 
Louis,  who  brought  suit  as  such  administrator  in  the  courts 
of  St.  Louis  to  collect  the  money  she  had  placed  in  the 
hands  of  her  husband,  and  it  was  held  that  he  could  not 
maintain  the  suit  because  the  domicil  of  the  deceased  fol- 
lowed that  of  her  husband,  and  was  in  New  York  and  not 


14  Crohn  v.  Clay  County  State  Bank,  137  Mo.  App.  712,  118  S.  W. 
498. 

15  state,  to  Use  of  Adams,  v.  Campbell,  10  Mo.  724;  Spraddling 
V.  Pipkin.  15  Mo.  119;  Naylor's  Adm'r  v.  Moffatt,  29  Mo.  126;  2 
Rcdf.  on  Wills,  19. 

16  Minor  v.  Card  well,  37  Mo.  350,  90  Am.  Dee.  390;  McTherson's 
Adm'r  v.  Mcl'herson,  70  Mo.  App.  330. 


§  363        ESTATES  OF  NONRESIDENTS,  HOW  ADMINISTERED        369 

in  St.  Louis,  and  her  personal  or  movable  property  was 
governed  by  the  law  of  her  domicil.^^ 

§  363.  Same — Disposal  of  Estate  After  Payment  of  Lo- 
cal Debts. — The  foregoing  principles,  existing  in  our  un- 
written or  common  law,  we  find,  have  the  form  and  force 
of  statute  law.  The  statute  provides  that  when  administra- 
tion shall  be  taken  in  this  state  on  the  estate  of  any  person 
who,  at  the  time  of  his  decease,  was  an  inhabitant  of  any 
other  state  or  country,  his  real  estate  found  here,  after  the 
payment  of  his  debts,  shall  be  disposed  of  according  to  his 
last  will,  if  he  left  any,  duly  executed  according  to  the  laws 
of  this  state;  and  his  personal  estate,  according  to  his  last 
will,  if  he  left  any,  duly  executed  according  to  the  laws  of 
his  domicil ;  and  if  there  should  be  no  such  will,  his  real  es- 
tate shall  descend  according  to  the  laws  of  this  state,  and 
his  personal  estate  shall  be  distributed  and  disposed  of  ac- 
cording to  the  laws  of  the  state  or  country  of  which  he  was 
an  inhabitant.^ ^  Upon  the  final  settlement  of  such  an  es- 
tate, and  after  the  payment  of  all  debts  for  which  the  same 
is  liable  in  this  state,  the  residue  of  the  personal  estate,  if 
any,  may  be  distributed  and  disposed  of,  in  the  manner 
aforesaid,  by  the  court  in  which  the  estate  is  settled ;  or  it 
may  be  transmitted  to  the  executor  or  administrator,  if 
there  be  any,  in  the  state  or  country  where  the  deceased 
had  his  domicil,  as  the  court  under  the  circumstances  shall 
think  best.^^ 

The  application  of  this  law  is  illustrated  in  the  following 
case.  One  Knight,  having  his  domicil  in  Indiana,  died, 
leaving  heirs  of  the  whole  blood  and  heirs  of  the  half  blood. 
An  administrator  was  appointed  there,  another  in  Missis- 
sippi ;  there  being  personal  property  in  each  state.  The 
court  in  Mississippi,  in  a  proceeding  to  which  the  heirs  of 
the  half  blood  were  not  parties,  ordered  the  entire  fund  in 
that  state  to  be  distributed  to  the  heirs  of  the  whole  blood. 
By  the  laws  of  Indiana,  the  heirs  of  the  half  blood  were 
equally   entitled   to   share  with   the   others   in   the   estate. 

17  McPherson's  Adm'r  v.  McPherson,  70  Mo.  App.  .330:  Richard- 
son V.  Le%\'ls,  21  Mo.  App.  .")31 ;  Couierford  v.  Coulter,  82  Mo.  App. 
362. 

18  Moss  V.  Craft.  10  Mo.  724;  Darrah  v.  The  Lightfoot.  15  Mo.  188: 
Naylor's  Adm'r  v.  Moftatt,  29  Mo.  120;  McPherson's  Adui'r  v.  Mc- 
Pherson, 70  Mo.  App.  330. 

19  Rev.  St.  1009,  §  261. 

Kel.Mo.P.G.— 24 


370       ESTATES  OF  NONRESIDENTS,  HOW  ADMINISTERED        §  363 

They  applied  to  the  courts  to  compel  the  administrator  in 
Indiana  to  pay  out  to  them  the  fund  in  his  hands,  until  they 
were  made  equal  in  the  distrilnition  with  the  heirs  in  Mis- 
sissippi. The  supreme  court  of  Indiana  decided  that  inas- 
much as  Knight  was  domiciled  in  Indiana,  the  laws  of  that 
state  controlled  the  distribution  of  all  the  personal  proper- 
ty, and  ordered  the  administrator  to  pay  out  the  fund  ac- 
cording- to  the  prayer  of  the  heirs  of  the  half  blood. -° 

Distribution  to  nonresidents  or  foreign  heirs  or  distribu- 
tees may  be  made  to  residents  holding  powers  of  attorney, 
properly  authenticated,  and  executed  by  such  nonresident 
heirs  or  distributees,  or  by  their  administrators,  guardians 
or  curators,  appointed  in  accordance  with  the  laws  of  such 
state  or  foreign  country.-^ 

§  364.  When  the  Estate  is  Insolvent. — If  the  deceased 
died  insolvent,  his  estate  found  in  this  state  must,  as  far 
as  practicable,  be  so  disposed  of  that  all  his  creditors,  here 
and  elsewhere,  may  receive  an  equal  share  in  proportion  to 
their  respective  debts.  To  this  end,  the  estate  shall  not  be 
transmitted  to  the  foreign  executor  or  administrator,  until 
his  creditors,  who  are  citizens  of  this  state,  shall  have  re- 
ceived their  just  proportions  that  would  be  due  to  them  if 
the  whole  of  the  estate,  wherever  found,  were  divided 
among  all  the  said  creditors  in  proportion  to  their  respec- 
tive debts,  without  preferring  one  species  of  debt  to  anoth- 
er. In  such  case,  no  creditor,  not  being  a  citizen  of  this 
state,  shall  be  paid  out  of  the  assets  found  here  until  those 
who  are  citizens  shall  have  received  their  just  proportions. 
If  there  be  any  residue,  after  such  payment  to  the  citizens 
of  this  state,  the  same  may  be  paid  to  any  other  creditors 
who  have  duly  proved  their  debts  here  in  proportion  to  the 
amount  due  to  each  of  them  respectively.-^  No  one  shall 
receive  more  than  would  be  due  to  him  if  the  whole  estate 
were  divided  ratably  among  all  the  creditors.  The  balance, 
if  any,  may  be  transmitted  to  the  foreign  executor  or  ad- 
ministrator; or,  if  there  be  none  such,  it  shall,  after  the 
expiration  of  three  years  from  the  appointment  of  the  ad- 
ministrator, be  distributed  ratably  among  all  the  creditors, 

20  McClerry  v.  Matson,  2  Iiid.  79 ;  Story's  Couf.  Laws,  481;  2  Kent's 
Com.  429 ;    Wheat.  Int.  Law,  188. 

21  Laws  1911,  p.  8G,  §  1. 

2  2  Rev.  St.  1909,  §§  202,  205. 


§  365       ESTATES  OF  NONRESIDENTS,  HOW  ADMINISTERED       371 

citizens  and  others  who  shall  have  proved  their  debts   in 
this  state. ^^ 

§  365.  Same — All  Creditors  to  be  Equal. — Thus,  it  will 
be  seen  that  the  statute  provides  for  the  distribution  of  in- 
solvent estates  of  nonresidents,  and  establishes  the  princi- 
ple that  resident  creditors  are  not  to  be  preferred  to  non- 
resident; but  no  specific  plan  is  laid  down  for  makini,^  the 
distribution  or  ascertaining  how  much  the  nonresident 
creditors  are  entitled  to  out  of  the  assets  in  this  state.  The 
matter  may  be  adjusted,  probably,  under  the  statute  which 
directs  the  court  to  make  orders  of  distribution  among  cred- 
itors so  that  no  difficulty  need  arise.  In  many  states  no  or- 
der of  distribution  is  required,  but  the  administrator  or  ex- 
ecutor may  distribute  at  his  own  risk;  but  in  this  state  the 
whole  subject  of  distribution  is  left  to  the  courts  of  pro- 
bate, and,  if  the  executor  or  administrator  acts  in  obedience 
to  the  order  of  the  court  and  makes  a  proper  exhibit  he  will 
be  protected  by  such  order.  If  then  the  nonresident  credi- 
tors desire  to  participate  in  the  distribution  here,  they 
should  appear  and  make  such  an  exhibit  of  the  foreign  es- 
tate as  to  show  precisely  what  they  have  received  and  will 
receive  from  such  estate,  and  ask  to  be  included  in  the  or- 
der of  distribution  under  the  principle  of  our  statute,  and 
if  they  do  not  appear  within  three  years,  the  whole  estate 
will  be  distributed  among  such  creditors  as  have  proved 
their  debts  in  this  state. ^* 

23  Rev.  St.  1909.  §§  2G6,  2G7;  Stevens  v.  Larwill,  110  Mo.  App.  1-iU, 
84  S.  W.  113. 

2  4  Rev.  St.  1909,  §  2G7. 


373  SETTLEMENT  OF  ACCOUNTS  §  366 


CHAPTER  XXVIII 

OF  THE   SETTLEMENT  OF   THE   ACCOUNTS   OF   EXECUTORS 

AND  ADMINISTRATORS.  ANNUAL  AND  FINAL 

SETTLEMENTS 

§  306.  Settlement,  when  to  be  ni.ide. 

307.  Docket  to  be  kept  and  piiblislied. 

368.  Docket  to  be  called  for  settlement— Citation  to  be  issued. 

369.  Penalty  for  failing  to  make  settlement. 

370.  What  to  be  charged  in  semi-annual  settlement. 

371.  Same— With  interest  received. 

372.  What  to  be  credited  in  such  settlement. 

373.  Receipts,  vouchers,  proof  of  payment  of  debts. 

374.  Form  of  semi-annual  settlement. 

375.  Nature  and  effects  of  such  settlement. 

376.  Duty  of  court  to  order  payment  of  debts. 

377.  Execution  to  be  issued. 

378.  Scire  facias  or  suit  on  bond. 

379.  Final  settlement  to  be  made — Notice  thereof,  how  given. 

380.  Form  of  final  settlement. 

381.  Uncollected   accounts,   etc.,   to  be   delivered  to   creditors  or 

distributees. 

382.  Discharge  of  executor  or  administrator. 

383.  Opening  final  settlement. 

384.  Final  discharge  of  administrator. 

885.     Proceedings  by  creditor  after  final  settlement. 

§  366.  Settlement,  When  to  be  Made. — The  clerk  of  the 
probate  court  is  required  to  provide  well  bound  books  and 
enter  therein  the  accounts  and  settlements  of  all  executors 
and  administrators  made  in  said  court,  in  such  manner  as 
to  form  a  complete  record  of  all  such  accounts  settled  in 
that  court.^  Every  executor  and  administrator  must  ex- 
hibit a  statement  of  accounts  of  his  administration  for  set- 
tlement, with  proper  vouchers,  to  the  court,  at  its  first  term 
after  the  end  of  six  months  from  the  date  of  his  letters,  and 
at  the  first  term  after  the  end  of  one  year  from  the  date  of 
letters  and  at  the  corresponding  term  of  such  court  every 
year  thereafter  until  the  administration  is  completed.^ 
When  he  resigns  or  is  removed  from  office,  he  shall  in  like 


I  Rev.  St.  1909,  §  221. 

3  Rev.  St.  1909,  §  222,  as  amended  by  Laws  1911,  p.  83,  §  1, 


§  368  SETTLEMENT  OF  ACCOUNTS  373 

manner  exhibit  a  statement  of  the  accounts  of  his  adminis- 
tration with  proper  vouchers. 

§  367.  Docket  to  be  Kept. — The  clerk  of  the  court  must 
keep  a  docket,  and  enter  therein  a  list  of  all  executors  and 
administrators  who  have  not  made  final  settlement  of  their 
accounts,  the  date  of  their  letters  and  the  term  at  which 
they  are  required  to  make  settlement.  He  must  also  keep 
a  docket  in  which  he  must  enter,  at  least  thirty  days  before 
each  term,  the  names  of  all  executors  and  administrators 
whose  settlements  are  due  at  such  term,  and  must  desi,L;;nate 
in  such  docket  the  particular  day  upon  which  such  settle- 
ment is  ordered  to  be  made.  We  have  shown  in  a  former 
chapter  how  this  docket  must  be  published.^  On  the  day 
so  appointed  the  executor  or  administrator  must  appear  and 
make  his  settlement,  unless  for  good  cause  shown  the  court 
shall  continue  the  same."* 

§  368.  Docket  to  be  Called  for  Settlement — Citation  to 
be  Issued. — The  court  shall  call  the  names  of  executors  and 
administrators  on  the  days  for  which  their  settlements  are 
docketed,  and  if  any  executor  or  administrator  fail  to  ap- 
pear and  make  settlement,  the  court  shall  continue  said  set- 
tlement to  a  future  day  during  the  same  term.  Unless  good 
cause  be  shown  for  such  failure  to  appear  within  ten  days, 
then  the  clerk  shall  issue  a  citation  to  each  executor  or  ad- 
ministrator requiring  him  to  make  settlement  on  the  day  to 
which  said  settlement  is  continued  and  show  cause,  if  any 
he  have,  why  attachment  should  not  issue  against  him  for 
failing  to  make  settlement  according  to  law.'' 

Form  of  Citation  for  Settlement 

State  of  Missouri,  | 
County  of  .   \ 

The  Stiite  of  Missouri,  to  A.  D.,  administrator  of  the  estate  of  A. 
B.,  deceased: 

You  are  hereby  cite<l  personally  to  be  and  appear  before  the  judge 
of  the  probate  court  of  said  county,  at  the  court  house  in  the  city  of 

in  said  county,  on  the  day  of  .  19 — ,  then  and 

there  to  make  and  submit  to  the  court  your  settlement  of 

accounts  in  said  estate,  as  such  administrator,  and  show  cause,  if 

sAnte,  §  141. 

4  liev.  St.  1900.  §  224. 

8  Kev.  St.  1909.  §  22.5.  as  amended  by  Laws  1911.  p.  84.  §  1. 


374  SETTLEMENT  OF  ACCOUNTS  §  368 

any  you  have,  why  attachment  should  not  issue  against  you  for 
failing  to  make  settlement  when  due,  according  to  law. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed  the 

seal  of  said  court,  at  on  this  day  of  , 

19-.  J-  R- 

[Seal.]  (Style  of  otiice.) 

§  369.  Penalty  for  Failing  to  Make  Settlement. — This 
citation  may  be  directed  to  any  county  in  which  the  execu- 
tor or  administrator  resides  or  may  be  found,  and  shall  be 
served  not  less  than  ten  days  before  said  citation  is  return- 
able, in  the  same  manner  as  writs  of  summons  in  civil  cas- 
es, and  if  the  officer  to  whom  the  citation  shall  be  directed 
shall  return  the  same  with  the  indorsement  thereon  that 
the  person  named  therein  has  not  been  found  by  him,  the 
court  shall  continue  said  settlement  to  a  future  day  of  the 
same  or  a  subsequent  term,  and  the  clerk  shall  immediately 
issue  an  alias  citation  returnable  on  the  day  to  which  said 
settlement  is  continued,  which  shall  be  published  by  post- 
ing the  same  on  the  court  house  door  at  least  ten  days  be- 
fore the  return  thereof.^ 

If,  after  service  or  publication  of  the  citation,  the  execu- 
tor or  administrator  appear  and  make  settlement,  he  must 
be  fined  for  his  failure  to  make  settlement  at  the  proper 
time  in  a  sum  not  exceeding  one  hundred  dollars,  unless  he 
satisfy  the  court  that  it  was  impracticable  for  him  to  make 
such  settlement.  Such  fine  must  be  paid  into  the  county 
treasury,  and  the  executor  or  administrator  and  his  securi- 
ties will  be  liable  for  the  same  upon  their  bonds.  But  if 
the  executor  or  administrator  shall,  after  such  service  or 
publication,  fail  to  appear  as  required  in  such  citation,  or 
appearing  shall  fail  or  refuse  to  make  settlement,  or  show 
cause  why  such  settlement  should  be  continued,  the  court 
may,  in  addition  to  the  fine  provided  for  in  the  preceding 
section,  revoke  the  letters  of  such  delinquent  and  issiie  at- 
tachments or  other  process  to  compel  such  settlement,  di- 
rected to  any  county  in  the  state,  and  in  all  such  cases  the 
delinquent  shall  pay  the  costs. '^  When  an  executor  or  ad- 
ministrator fails  to  settle  as  here  required,  his  letters  may 
be  revoked,  and  an  administrator  de  bonis  non  appointed, 

6  Rev.  St.  1900,  §  226,  as  amended  by  Laws  1911,  p.  84,  §  1. 
T  Rev.  St.  1909,  §§  227,  228 ;   Laws  1911,  p.  85,  §  1 ;    Scott  v.  Crews, 
72  Mo.  261 ;    State,  to  Use  of  Collins,  v.  Stephenson,  12  Mo.  182. 


§  370  SETTLEMKNT  OF  ACCOUNTS  875 

who  may  maintain  a  proceeding  against  his  predecessor  to 
recover  the  assets  in  his  hands. ^ 

§  370.  With  What  to  be  Charged  in  Semi-Annual  Set- 
tlement.— The  statute  requires  the  settlement  to  contain  a 
just  and  true  account  of  all  moneys  collected,  the  date 
when,  from  whom  and  on  what  account  collected,  whether 
on  claims  inventoried  or  for  property  sold  or  other  wise; 
showing  the  exact  amount  of  principal  and  interest  collect- 
ed on  each  claim ;  and  also  what  interest  has  been  obtained 
upon  any  funds  in  his  hands,  when  obtained,  on  what 
amounts,  for  what  time  and  at  what  rate  per  centum,  and 
it  must  show  the  amount  and  date  of  each  expenditure  or 
distribution,  and  to  whom  and  for  what  paid,  and  such  set- 
tlement must  be  subscribed  by  the  executor  or  administra- 
tor and  verified  by  his  affidavit. '^ 

The  executor  or  administrator  should  return  with  each 
settlement  to  the  court  a  complete  and  classified  list  of  all 
demands  against  the  estate  exhibited  to  him  and  not  shown 
by  the  settlement  to  be  paid.^"  Since  the  amendments  of 
1911  this  is  a  very  important  duty,  as  the  Legislature  ap- 
parently makes  exhibition  to  the  administrator  or  executor 
within  the  period  of  one  year  after  publication  of  notice  of 
letters  the  test  of  whether  or  not  a  demand  is  barred,  rather 
than  presentation  to  the  court  during  said  period  as  was  the 
case  when  the  law  provided  for  a  two-year  period  of  admin- 
istration.^^ This  list  should  include  all  demands  exhibited 
to  the  administrator  or  executor  regardless  of  whether  or 
not  such  demands  have  afterwards  been  presented  to  the 
court  for  allowance.  A  failure  to  properly  return  this  list 
with  each  settlement,  as  it  is  an  act  or  duty  required  by 
law,  would  amount  to  a  breach  of  the  conditions  of  bond 
given  by  such  administrator  or  executor.^-  It  would  be  ad- 
visable, although  the  statute  does  not  specifically  require 
it,  that  the  list  be  verified  by  oath  as  a  correct  and  complete 
account  or  list  of  all  demands  exhibited. 


,8  Scott  V.  Crews,  72  Mo.  261. 

9  Rev.  St.  1009.  §  222.  as  amended  by  Laws  1011.  p.  S3.  §  1. 

10  Rev.  St.  1000.  §  106. 

1 1  Rev.  St.  1000.  §S  r.M),  191,  104,  195 :  Farmers'  Sav.  Bank  of  Mar- 
shall V.  Rurgiu,  7.3  Mo.  App.  108 ;  Teuuy's  Adm'r  v.  Lasley's  Adm'rs. 
SO  Mo.  664. 

12  Rev.  St.  1909,  §  26. 


376  SETTLEMENT  OF  ACCOUNTS  §  371 

§  371.  Same — All  interest  received  by  the  executor  or 
administrator  on  debts  due  the  estate  is  considered  assets 
in  his  hands,  and  if  he  loan  the  money  of  the  deceased  or 
use  it  for  his  own  private  purpose,  he  must  pay  interest 
thereon  to  the  estate,  and  at  each  settlement  the  court  will 
exercise  an  equitable  control  in  making  executors  and  ad- 
ministrators account  for  interest  received  by  them  on  debts 
due  to  the  estate,  and  for  interest  accruing  on  money  be- 
longing to  the  estate,  loaned  or  otherwise,  employed  by 
him,  and  for  that  purpose  may  take  testimony  or  examine 
him  under  oath.^^  The  statute  specifically  requires  the  pro- 
bate courts  to  follow  the  equity  practice  in  making  execu- 
tors or  administrators  account  for  interest  on  funds  of  the 
estate  and  used  by  them  for  private  purposes.  They  may 
be  charged  with  compound  interest  or  with  profits  received 
from  the  use  of  such  funds. ^*  It  is  a  maxim  old  in  equity 
jurisprudence  that  when  a  trustee  mingles  trust  funds  with 
his  private  moneys  or  uses  trust  funds  for  his  own  pur- 
poses that  he  is  to  be  charged  with  interest  compounded 
with  annual  rests  at  the  legal  rate.  It  is  likewise  a  rule  in 
equity  that  where  a  trustee  negligently  fails  to  properly  in- 
vest trust  funds  he  is  chargeable  with  simple  interest  thereon, 
not  compounded.  If  there  is  not  an  unreasonable  amount 
of  money  on  hand,  and  it  does  not  appear  that  the  adminis- 
trator loaned  or  used  it,  he  should  not  be  charged  with  in- 
terest.^ ^  But  if  he  should  have  employed  the  funds,  and 
did  not,  he  should  be  charged  with  interest.^*  So  if  he 
makes  a  misapplication  of  the  assets  or  uses  the  funds,  he 
is  chargeable  with  interest.^'' 

In  general,  no  profit  can  be  made  by  the  executor  or  ad- 
ministrator by  the  increase,  nor  any  loss  sustained  by  the 
decrease  or  destruction  of  the  estate  without  his  fault,  but 
he  must  account  for  such  increase,  and  be  allowed  for  such 
decrease  on  the  settlement  of  his  accounts.^*    So,  if  an  ex- 

13  Rev.  St.  1909,  §§  231,  232. 

i4Albert  v.  Sanford,  201  Mo.  117,  99  S.  W.  10G8 ;  Green  v.  Hussey, 
96  Mo.  App.  295,  70  S.  W.  156;  Myers  v.  Myers,  98  Mo.  262,  11  S.  W 
617;    Cruce  v.  Cruce,  81  Mo.  676. 

15  Myers  v.  Myers,  98  Mo.  262,  11  S.  W.  617. 

leWolfort  V.  ReUly,  133  Mo.  463,  34  S.  W.  847;  In  re  Danforth's 
Estate,  66  Mo.  App.  586 ;   Gregory  v.  Menefee,  83  Mo.  413. 

17  Julian  V.  Wrightsman,  73  Mo.  569. 

18  Vandemark  v.  Vandemark,  26  Barb.  (N.  Y.)  416;  Gamble  v.  Gib- 


§  372  SETTLEMENT  OF  ACCOUNTS  377 

ecutor  or  administrator  receives  money  for  the  sale  of  land, 
to  which  the  decedent's  title  was  defective,  or  receives  mon- 
ey rightfully  or  wrongfully,  as  executor  or  administrator, 
he  must  be  charged  with  it  in  his  account,  unless  he  shows 
that  he  is  under  a  legal  obligation  to  refund  it,  and  that  the 
money  will  probably  be  demanded.^®  At  common  law  the 
administrator  was  not  entitled  to  rents  of  real  estate,  and 
if  he  received  them  he  was  chargeable  therewith  as  trustee 
or  trespasser,  and  not  as  administrator,  but  in  this  state  he 
is  required  to  inventory  the  real  estate,  and,  by  order  of 
court,  may  lease  it  and  collect  the  rents  when  necessary  to 
pay  the  debts,  and  he  is  chargeable  in  his  character  as  ad- 
ministrator for  whatever  he  receives  in  that  capacity."" 
But  he  is  not  accountable  for  debts  inventoried  as  due  to 
the  deceased,  if  it  appear  to  the  court  that  they  remain  un- 
collected without  his  fault. 

§  372.  With  What  to  be  Credited.— In  all  settlements 
of  executors  or  administrators,  the  court  must  allow  all  dis- 
bursements and  appropriations  made  by  order  of  the  court, 
and  all  reasonable  charges  for  funeral  expenses,  leasing  real 
estate,  legal  advice  and  service,  and  for  collecting  and  pre- 
serving the  estate ;  and  as  full  compensation  for  their  serv- 
ices and  trouble,  a  commission  of  five  per  cent,  on  personal 
estate,  and  on  money  arising  from  the  sale  of  real  estate."^ 
A  surviving  partner  administering  the  partnership  estate  is 
entitled  to  a  commission  of  three  per  cent,  on  the  interest 
of  the  deceased  partner  for  such  services.  But  when  the 
homestead  is  sold,  the  administrator  is  not  entitled  to  com- 
mission on  the  value  of  the  homestead.^-  And  in  the  final 
settlement  he  should  be  credited  with  the  decrease  in  value 
of  any  of  the  assets;  and  with  all  debts  which  have  been 
charged  in  the  inventory  as  due  to  the  estate,  if  the  court 
be  satisfied  that  such  debts  were  not  really  due  to  the  es- 

son,  59  Mo.  586;  Merritt's  Elstate  v.  Merritt,  62  Mo.  150:  Fudge  v. 
Diirn.  51  Mo.  264. 

lojennison  v.  Hapgood,  10  Pick.  (Mass.)  77;  Gramble  v.  Gibson, 
59  Mo.  385 ;    McPike  v.  MoPike,  111  Mo.  216,  20  S.  W.  12. 

20McPtke  V.  Mcl'ike,  111  Mo.  216,  20  S.  W.  12;  Thorp  v.  Miller, 
137  Mo.  231,  38  S.  W.  029 :  In  re  Soulard's  Estate,  141  Mo.  642,  43 
S.  W.  617. 

21  Rev.  St.  1009.  §  229:  In  re  O'Bannon's  Estate,  142  Mo.  App.  268, 
126  S.  W.  215. 

22  Elstroth  V.  Dickuieyer,  SS  Mo.  App.  418. 


378  SETTLEMENT  OF  ACCOUNTS  §  372 

tate,  or  had  been  balanced  or  reduced  by  off-sets  in  any 
court  of  competent  jurisdiction,  or  the  debtor  was  insol- 
vent, or  that,  from  any  other  cause,  it  was  impossible  to 
have  collected  such  claims  by  the  exercise  of  due  dili- 
gence.-^ 

The  executor  or  administrator  is  responsible  for  the 
amount  of  sale  notes  or  other  notes  or  securities  taken  by 
him  in  the  course  of  the  administration,  unless  he  can  show 
by  evidence  satisfactory  to  the  court  that  he  proceeded  with 
due  caution  in  taking  such  notes,  and  used  due  diligence  to 
collect  them.-* 

§  373.  Receipts  or  Vouchers,  or  Proof  of  Payment. — 
Great  care  should  be  taken  in  drawing  up  settlement  ac- 
counts, that  they  contain  a  true  statement  of  all  the  assets 
for  which  the  executor  or  administrator  is  accountable,  and 
the  disposition  that  has  been  made  of  the  same,  whether 
by  payment  of  debts,  legacies  or  other  claims,  or  disbursed 
to  distributees.  Each  account  or  settlement  should  be  ac- 
companied with  proper  vouchers  or  receipts,  regularly  la- 
beled and  numbered,  which  should  be  filed  with  the  report 
and  preserved  with  the  papers  in  the  estate.  And  the  ex- 
ecutor or  administrator  must  show  that  every  claim  for 
which  disbursements  have  been  made,  has  been  allowed  by 
the  court  according  to  law.^^  Where  credit  has  been  allow- 
ed in  a  partial  settlement  for  a  claim  paid  by  the  adminis- 
trator this  would  be  prima  facie  evidence  that  it  is  correct 
and  he  will  be  entitled  to  credit  for  it  in  his  final  settle- 
ment.-**  As  the  statute  now  stands  it  would  be  safer  and 
more  convenient  to  require  all  claims  to  be  proven  and  al- 
lowed by  the  court  before  paying  them.  Being  trustee  to 
those  interested  in  the  estate  administrator  may,  with  the 
approval  of  the  court,  compromise  any  debt  due  the  estate 
or  demand  against  it,  using  such  care  and  skill  in  the  prem- 
ises as  a  prudent  man  would  exercise  in  like  circumstanc- 
es.^^    When  a  legitimate  claim  is  paid  by  an  executor  or 

2  3  xMyers  V.  Myers,  98  Mo.  262,  11  S.  W.  617. 

2  4  Julian  V.  Abbott,  73  Mo.  580. 

2  5  Kev.  St.  1909,  §  230;  Myers  v.  Myers,  98  Mo.  262,  11  S.  W.  617; 
Jacobs  V.  Jacobs,  99  Mo.  427,  12  S.  W.  457 ;  Springfield  Grocer  Co.  v. 
Walton,  95  Mo.  App.  526,  69  S.  W.  477. 

26McPike  V.  McPike,  111  Mo.  216,  20  S.  W.  12;  Myers  v.  Myers, 
98  Mo.  262,  11  S.  W.  617. 

2  7  Rev.  St.  1909,  §  240;  Jacobs  v.  Jacobs,  99  Mo.  427,  12  S.  W.  457; 
Wilson  V.  Stark,  47  Mo.  App.  116. 


374 


SETTLEMENT  OF  ACCOUNTS 


379 


administrator  without  first  having  had  the  same  presented 
to  and  allowed  by  the  court,  if  it  could  have  been  properly 
probated  and  its  payment  does  not  prejudice  other  credi- 
tors, the  executor  or  administrator  is  entitled  to  take  credit 
for  the  amount  cxjiendcd  in  his  settlement.'"® 

§  374.     Form  of  First  Partial  Settlement. — 

In  the  Probate  Court  of County,  ADssouri,  at  . 

Term,  A.  D.  10 — . 

First   partial    .settlement   of   William   Law,    Administrator   of  the 
Estate  of  Richard  Rogers,  deceased. 


Month 

Date 

1912 

Jan. 

20 

Jan. 

20 

March 

1 

Ai)ril 

1." 

May 

1 

June 

1 

June 

1 

June 

20 

Your  administrator  charges 
himself  as  follows: 

Cash  in  bank  as  per  inventory 

Ca.sh  in  possession  of  deceas- 
ed at  time  of  death  as  per 
inventory    

From  H.  D.  Curtis  for  E.  M. 
F.  automobile  of  deceased 
sold  by  order  of  court 

From  Auburn  Banking  Com- 
pany as  semi-annual  divi- 
dend on  stock  of  said  com- 
pany listed  in  inventory..  . . 

From  J.  J.  McOee  in  payment 
of  interest  due  on  note  No. 
2  listed  in  inventory 

From  Olie  Ingram  in  payment 
of  note  Xo.  1  in  full,  $200 
on  principal  and  $41.50  on 
interest    

Casli  received  from  sale  of 
real  estate  by  order  of  court 
to  Lathrop  Gay.  same  being 
lot  2.  block  3  in  Mutt's  ad- 
dition to  ,  etc 

From  Auburn  Banking  Com- 
pany, interest  due  on  certif- 
icate of  deposit  No.  672.  . .. 


No.  of 
Vouch. 

1 
DEBIT     ; 

Dollars 

Cts. 

1,110 

00 

55 

00 

500 

00 

75 

00 

1.3 

50 

241 

50 

i 

1,000 

! 
00 

30 

00 

3.025 

00 

CREDIT 


Dollars  Cts. 


2SAlbert  v.  Sanford,  201  Mo.  117,  00  S.  W.  IOCS;    Judson  v.  Ben- 
nett, 233  Mo.  G07,  136  S.  W.  681. 


380 


SETTLEMENT   OF   ACCOUNTS 


374 


Month 


1912 
Feb. 


Date 


20 

20 

25 
25 


No.  of 
Vouch, 


DEBIT 


March 

1 

tt 

15 

April 

1 

i( 

6 

Your  administrator  asks  credit 
as  follows: 

Oakdale  Cemetery,  allowed, 
class  1 

John  B.  Lawrence,  undertak- 
er, allowed,  class  1 

Probate  clerk,  court  costs.... 

To  Daily  Herald,  publication 
of  notice  granting  letters, 
allowed   

John  Jones,  physician,  allow- 
ed, class  2 

Susan  Rogers,  widow,  by  or- 
der of  court 

Susan  Rogers,  widow,  by  or- 
der of  court 

John  Anderson,  on  judgment, 
allowed   


Balance  on  hand. 


Dollars  Cts 


CREDIT 


Dollars 


1,895  00 


100 

150 
5 


eta. 


00 

00 
00 


15 

35 

75 

400 

350 


1,130 


00 
00 
00 
00 
00 
00 


1,S95 


00 


This  balance  consists  of: 
Certificate  of  deposit  drawing  interest  at  the  rate  of  3%, 

same  being  No.  C72  of  Auburn  Banking  Company $1,000.00 

Cash  on  deposit  with  First  National  Bank 895.00 


$1,895.00 

The  following  is  a  complete  and  correct  list  of  demands  against 

said  estate  which   have  been   exhibited  to  your  administrator  and 

presented  to  and  allowed  by  the  court: 
1912 

Jan.  30.  Note  signed  by  deceased  for  $1,000,  dated  Jan- 
uary 1,  1911,  due  January  1,  1913,  payable  to 
order  of  Eliza  Kimball,  bearing  6%  interest 
from  date.  Interest  paid  to  January  1,  1912, 
allowed,  class  5 $1,000.00 

March  15.     Palace  Garage,  account  current  for  automobile 

supplies,  allowed,  class  5 150.00 

March  15.  John  Carver,  account  current  for  groceries,  al- 
lowed, class  5 GO.OO 


§  376  SIOTTLEMENT   OF   ACCOUNTS  381 

The  followinj?  is  a  comploto  and  oorreft  list  of  all  flonianrls  afjainst 
said   estate  which   have   been  exhibited   to  your  admiuistiator,    but 
have  not,  as  yet,  been  presented  to  and  allowed  by  the  court: 
Note  of  deceased  for  $;jOO.0O,  dated  June  1,  1911,  due  June 
1,  1911.',  drawing  interest  at  0%  per  annum,  payable  to  or- 
der of  Kate  Ford,  interest  paid  to  maturity,  class  5 $.500.00 

John   Reynolds,   account  current   for  druj^s  and   medicines, 

class  1. l-»00 

WILLIAM  LAW,  Administrator. 
State  of  Missouri, 

County  of  

William  I^nw,  the  administrator  aforesaid,  upon  his  oath  says  that 
the  forej^oing  settlement  contains  a  .iust  and  true  account  of  all 
moneys  received  and  paid  out  by  him  for  and  on  account  of  said  es- 
tate from  the  time  of  his  appointment  to  this  date. 

(Signed)     WILLIAM  LAW.  Administrator. 
Subscribed  and  sworn  to  before  me  this day  of ,  1912. 


(Style  of  Ollice.) 

The  itemized  account,  signed  and  sworn  to,  with  the  ac- 
companying receipts  or  vouchers  for  the  moneys  disbursed, 
and  the  action  of  the  court  upon  it  as  shown  by  the  record, 
constitutes  the  settlement,  whether  annual  or  final  settle- 
ment.^® 

§  375.  Partial  Settlements,  being  made  ex  parte,  and 
without  notice,  and  to  show  the  condition  of  the  estate  and 
the  progress  made  in  settling  it  up,  are  only  prima  facie 
correct,  and  may  be  reviewed  and  errors  and  mistakes 
therein  be  corrected  at  any  time  during  the  course  of  ad- 
ministration,"** or  at  the  final  settlement,"  and  such  settle- 
ments are  open  to  collateral  attack.*^ 

§  376.  Duty  of  Courtjto  Order  Payment  of  Debts. — The 
statute  provides  that  at  every  settlement  the  court  shall  as- 
certain the  amount  of  money  of  the  estate  which  has  come 
to  the  hands  of  the  executor  or  administrator,  from  all 
sources,  and  the  amount  of  debts  allowed  against  the  es- 

20  Tittman  v.  Green,  lOS  Mo.  22,  18  S.  W.  8S5 ;  State  ex  rel.  Foun- 
tain V.  Gray,  100  Mo.  520,  17  S.  W.  500. 

30  State  ex  rel.  Public  Adon'r  of  Daviess  County  v.  Lankford,  55 
Mo.  564 ;  Folger  v.  Ileidel,  60  Mo.  2s4 :  Ritcliey  v.  Withers,  72  Mo. 
5.50 ;  Clarke  v.  Sinks.  144  Mo.  448.  40  S.  W.  199 ;  State  ex  rel.  Strick- 
land V.  Strickland's  Adm'r.  SO  Mo.  App.  401. 

•'<i  Williams  v.  Petticrew's  Heirs,  02  Mo.  460;  In  re  Davis,  62  Mo. 
450;  Van  Liew  v.  Barrett  &  Barrett  Beverage  Co.,  144  Mo.  509,  46 
S.  W.  202. 

3  2  West  V.  West's  Adm'r,  75  Mo.  204;  North  v.  Priest.  81  Mo.  561; 
State  V.  Jones,  89  Mo.  470,  1  S.  W.  355. 


382  SETTLEMENT  OF  ACCOUNTS  §  376 

tate ;  and  if  there  be  not  sufficient  to  pay  the  whole  of  the 
debts  and  the  expenses  of  administration,  the  money  re- 
maining after  paying  the  expenses  of  administration  shall 
be  apportioned  among  the  creditors  according  to  law,  ac- 
cording to  the  classification  of  demands,  and  the  court  shall 
order  that  such  executor  or  administrator  pay  the  claims  al- 
lowed by  the  court  according  to  such  apportionment,  re- 
serving apportionments  made  on  claims  which  remain  un- 
decided until  decision  be  had  thereon. ^^  The  court,  upon 
every  settlement,  shall  proceed  in  like  manner  till  all  the 
debts  be  paid  or  the  assets  exhausted ;  and  if,  upon  such 
settlement,  there  shall  be  money  enough  to  satisfy  all  de- 
mands of  any  one  class  legally  exhibited  against  such  estate 
the  court  shall  order  the  whole  to  be  paid,  but  if  not,  the 
creditors  of  such  class  must  be  paid  ratably  in  proportion  to 
their  respective  debts,  and  no  creditors  of  any  one  class 
shall  be  paid  until  those  of  the  preceding  class  or  classes  are 
fully  paid.^*  The  administrator's  report  to  the  court  at 
each  settlement  showing  what  demands  have  been  exhibited 
to  him,  is  not  evidence  of  which  the  claimant  may  avail 
himself  to  determine  the  class  to  which  his  allowance  shall 
be  assigned. ^^ 

Order  for  Payment  of  Debts 

In  the  matter  of  the  estate  of  1 

R.  R.,  deceased.  I  Order  for  Payment  of  Debts. 

J.  D.,  administrator.  J 

Said  administrator  having  this  day  filed  his  first  settlement,  from 
which  it  appears  that  the  amount  of  money  of  the  estate  which  has 
come  to  his  hands  from  all  sources  is  eleven  hundred  and  twenty- 
three  dollars,  of  which  sum  he  has  disbursed  six  hundred  and  ninety- 
two  dollars  and  fifty  cents,  and  that  all  demands  of  the  first,  second, 
third  or  fourth  class  exhibited  to  said  administrator  have  been  paid, 
leaving  a  balance  in  his  hands  of  four  hundred  and  thirty  dollars. 
And  it  appearing  from  the  records  of  this  court  that  the  debts  allow- 
ed against  said  estate  and  assigned  to  the  fifth  class,  amoimt  to  the 
sum  of  seven  hundred  dollars,  it  is  ordered  that  said  money  on  hand, 
to-wit,  the  sum  of  four  hundred  dollars,  be  apportioned  among  such 
creditors  of  the  fifth  class,  and  that  said  administrator  pay  a  pra 
rata  amount  on  each  of  said  demands  of  fifty  cents  on  each  dollar, 
as  follows: 

To  II.  T.,  whose  demand  is  $100.00,  the  sum  of $  50.00 

To  W.  W.,  whose  demand  is  $  30.00.  the  sum  of 15.00 

(And  so  on  to  the  end  of  the  list.) 

33  Rev.  St.  1909,  §  2;33;    In  re  McCune's  Estate,  7G  Mo.  200;    Els- 
troth  v.  Young,  78  Mo.  A  pp.  651. 
3  4  Rev.  St.  1909,  §§  216,  234. 
3".  Pfeiffer  v.  Suss,  73  Mo.  245. 


§  378  SETTLEMENT  OF  ACCOUNTS  383 

§  377.  Execution  to  be  Issued. — If  any  executor  or  ad- 
ministrator fail  to  pay  any  claim  thus  ordered  to  be  paid, 
when  demanded,  the  clerk  of  the  court  (or  judge  of  probate) 
on  aiiplication  of  such  creditor  and  being-  satisfied  that  such 
demand  has  been  made,  shall  issue  execution  for  the  amount 
ordered  to  be  paid,  and  costs,  against  the  property,  goods 
and  chattels  and  real  estate  of  such  executor  or  adminis- 
trator.-^*^ The  execution  may  be  issued  by  order  of  the  court, 
and  when  it  is  issued  by  the  clerk  it  is  subject  to  the  order 
and  control  of  the  court,  as  the  order  of  distribution  is  in 
effect  a  judgment." 

Form  of  Execution 

State  of ,         ] 

County  of  .  j 

The   State  of  to  the  Sheriff  of  County,  greeting: 

Whereas,  on  the  day  of  ,  19 — ,  beinj,'  of   the  

term,  19—,  of  the • —  court  of  said  cuunty,  a  demand  in  favor  of 

H.  T.,  for  the  sum  of  one  hundred  dollars  was  allowed  against  the 
estate  of  R.   H.,   deceased,  by  said  court  and  assigned  to  the  hfth 

class:    and  whereas,  at  the  term,  19 — ,  of  said  court,  J.  D., 

the  administrator  of  said  estate,  on  maldng  his  first  settlement,  was 
ordered  by  the  court  to  pay  on  said  demand  the  sum  of  fifty  dollars, 
which  on  demand  he  has  failed  to  do:  You  are  therefore  commanded 
that  of  the  property,  goods  and  chattels  and  real  estate  of  the  said 
J.  D.,  in  your  county,  you  cause  to  be  made  the  said  sum  of  fifty 
dollars  with  interest  and  costs,  and  accruing  costs,  by  levy  and  sale 
thereof,  and  that  you  have  the  same  before  the  judge  of  said  court, 
on  the  — — —  day  of to  satisfy  the  said  debt  and  costs  afore- 
said and  that  you  certify  how  you  execute  this  writ. 

Witness:  E.  F.,  clerk  of  the  said  court  and  the  seal  thereof  at- 
tached this day  of in  the  year . 

[seal]  E.  F.,  Clerk,  (or  .Judge) 

of  Probate  Court. 

Executions  issued  from  a  court  of  record  must  be  made 
returnable  at  the  next  succeeding  term,  unless  the  plaintiii. 
or  person  for  whose  use  the  suit  was  brought,  otherwise 
directs;  then  it  must  be  made  returnable  to  the  second  suc- 
ceeding term  thereof.  It  may  be  directed  to  any  county  in 
the  state,  and  two  or  more  may  be  issued,  and  directed  to 
two  or  more  counties,  at  the  same  time.^^ 

§  378.  Scire  Facias,  or  Suit  on  the  Bond. — If  the  execu- 
tion is  returned  unsatisfied,  the  creditor  may  sue  out  of  the 
probate  court  a  scire  facias  against  any  one  or  more  of  the 

30  Rev.  St.  1909,  §  235. 

3  7  Johnson  v.  Jones,  17  Mo.  App.  237. 

8  8  Rev.  St.  1909,  §§  2175,  217G. 


384  SETTLEMENT  OF  ACCOUNTS  §  378 

securities  of  such  executor  or  administrator,  referring  to 
the  bond,  the  order  of  payment,  the  execution  and  return, 
and  requiring  such  security  to  show  cause  why  judgment 
should  not  be  rendered  against  him  for  the  amount  ordered 
to  be  paid  and  still  unsatisfied,^'^  or  in  such  case  the  dis- 
tributee may  bring  an  action  in  the  circuit  court  upon  the 
bond  against  the  administrator  and^his  sureties.*" 

Form  of  Scire  Facias 

State  of ,        I  gg 

County  of  .  j 

The  State  of  Missouri  to  the  SherifC  of  County,  greeting: 

Whereas,  J.  D.,  was  on  the  day  of  ,  19—,  duly  ap- 
pointed and  qualified  as  administrator  of  the  estate  of  R.  R.,  de- 
ceased, and,  as  such  administrator,  executed  his  bond  to  the  State  of 

Missouri,  in  the  sum  of —  dollars,  with  O.  P.  and  H.  A.,  as  his 

securities,  conditioned  that  he  should  faithfully  administer  said  es- 
tate, account  for,  pay  and  deliver  all  money  and  property  of  said 
estate,  and  perform  all  other  things  touching  said  administration 
required  by  law,  or  the  order  or  decree  of  any  court  having  jurisdic- 
tion, then  the  above  bond  to  be  void,  otherwise  to  remain  in  force; 

and,  whereas,  on  the day  of ,  19 — ,  being  of  the 

term  of  the  probate  court  of  said  county,  the  said  J.  D.,  on  making 
his  first  settlement  as  such  administrator,  was  ordered  by  the  court 
to  pay  on  the  demand  of  H.  T.,  allowed  against  said  estate  and  as- 
signed to  the  fifth  class,  the  sum  of  fifty  dollai's,  which  on  demand 

he  failed  to  do ;    and,  whereas,  on  the  day  of  ,  19 — , 

execution  was  duly  issued  by  the of  said  court,  on  said  order, 

against  the  goods  and  chattels  and  real  estate  of  the  said  J.  D., 

directed  and  delivered  to  the  sheriff  of county,  to  be  executed, 

and  was  afterwards,  to  wit:  on  the day  of ,  19 — •,  re- 
turned unsatisfied ;  Now,  to  the  end  that  what  is  just  and  right  in 
this  behalf  may  be  done,  you  are  hereby  commanded  to  summon  the 
said  O.  P.  and  H.  A.,  securities  in  said  bond  as  aforesaid,  that  they 

be  before  the  said  court  on  the  first  day  of  the  next  term 

thereof,  to  be  held  on  the  day  of  ,  19 — ,  at  the  court 

house  in in  said  county,  to  show  cause,  if  any  they  can,  why 

judgment  should  not  be  rendered  against  them  for  the  said  amount 
ordered  to  be  paid  by  said  administrator  to  said  H.  T.,  which  is  still 
unsatisfied,  and  for  costs ;  and  that  you  certify  how  you  execute 
this  writ. 

Witness:    E.  F.,  clerk  of  said  court,  at  ,  this  

day  of ,  19—  E.  F., 

Clerk  (or  Judge)  of  Probate  Court. 

The  scire  facias  may  be  directed  to  and  served  in  any 
county  in  this  state;   and  if,  upon  the  return  thereof,  good 

39  Rev.  St.  1909.  §  2.3G;  Newton  v.  Cox,  76  Mo.  8.52;  Dix  v.  Morris, 
6G  Mo.  514 :    State  ex  rel.  Richardson  v.  James,  S2  Mo.  509. 

40  State  ex  rel.  Frost  v.  Creusbauer,  68  Mo.  254. 


§  379  SETTLEMKNT  OF  ACCOUNTS  385 

cause  to  the  contrary  be  not  shown,  the  court  shall  render 
judgment  against  such  security  for  the  amount  unpaid,  and 
costs,  and  award  execution  therefor.  The  sureties,  of 
course,  may  set  up  any  proper  defense,  whether  legal  or 
equitable,  and  may  have  a  trial  by  a  jury  in  a  proper  case, 
but  they  cannot  attack  a  final  settlement  from  which  no 
appeal  has  been  taken, ■'^  though  an  annual  settlement  may 
be  reviewed  and  corrected  in  a  suit  or  proceeding  on  the 
bond.*^  The  order  of  the  court  directing  the  administrator 
to  pay  over  the  money  being  in  elTect  a  judgment,  is  con- 
clusive against  the  sureties  in  the  bond.*^ 

§  379.  Final  Settlement  to  be  Made  When,  Notice 
Thereof. — When  the  estate  has  been  fully  administered,  the 
executor  or  administrator,  at  the  first  regular  term  of  the 
court  after  the  expiration  of  one  year  from  the  date  of  the 
completion  of  the  publication  of  notice  of  letters,  may  make 
final  settlement  of  his  administration.  The  duty  is  impera- 
tive unless  further  time  is  given  by  the  court  through  an 
order  entered  of  record.  But  he  is  entitled  to  such  time 
in  which  to  close  up  his  administration  as  the  circumstances 
and  condition  of  the  estate  require.  Indeed,  the  court  has 
a  general  power  to  continue  the  administration  of  an  estate 
from  time  to  time  as  its  interests  demand.  Before  final  set- 
tlement may  be  had  and  essential  to  its  operation  as  a  judg- 
ment there  must  be  first  published  by  the  administrator  or 
executor  for  three  weeks  prior  thereto,  in  some  newspaper 
published  and  circulated  in  the  county  where  such  settle- 
ment is  to  be  made,  if  there  be  one,  if  not,  then  by  ten 
printed  handbills,  put  up  in  ten  public  places  in  said  county, 
a  notice  to  all  creditors  and  others  interested  in  said  es- 
tate, that  he  intends  to  make  such  final  settlement.  If  any 
executor  or  administrator  fails  to  so  advertise  and  make 
final  settlement  at  such  term,  or  when  required  by  the  court 

41  Wolff  V.  Scbaeffer,  74  Mo.  154;  State,  to  Use  of  Wolff,  v.  Berii- 
ing,  74  Mo.  87 ;  Dix  v.  Morris,  G6  Mo.  514 ;  Smith  v.  Eureka  Bank. 
S4  Kan.  528 ;    Howell  v.  .lump,  140  Mo.  441,  41  S.  W.  97G. 

42  State  ex  rel.  Public  Adm'r  of  Daviess  County  v.  Lankford.  55 
Mo.  564 ;  State  ex  rel.  Strickland  v.  Strickland'.s  Adin'r,  SO  Mo.  App. 
401. 

•«3  State,  to  Use  of  Griffith,  v.  Holt,.  27  Mo.  .340,  72  Am.  Doe.  273; 
State  ex  rel.  Rucker  v.  Rucker,  59  Mo.  17 ;  Dix  v.  Morris.  GG  Mo. 
514 ;  Taylor  v.  Hunt,  34  Mo.  205 ;  State  ex  rel.  Frost  v.  Creusbauer, 
GS  Mo.  254:  State  ex  rel.  Hospes  v.  Branch.  151  Mo.  622,  52  S.  W. 
300 :  State  ex  rel.  Gordon  v.  Kennedy.  1G3  Mo.  510.  63  S.  W.  678. 
KEL.Mo.r.G.— 2.- 


386  SETTLEMENT  OF  ACCOUNTS  §  379 

at  any  time  thereafter,  he  must  be  proceeded  against  as  for 
a  failure  to  make  annual  settlements,  unless,  for  good  cause 
shown,  the  court  shall  continue  the  same.** 

It  has  been  held  that  if  the  settlement  be  continued  after 
notice  has  been  given  a  new  notice  must  be  given.*^  A 
final  settlement  without  proper  notice  has  the  effect  of  a 
partial  settlement,  and  does  not  have  the  force  of  a  judg- 
ment.*''  Otherwise,  if  proper  notice  be  given, *^  in  the  ab- 
sence of  a  contrary  showing  it  will  be  presumed  that  no- 
tice was  given  and  the  law  complied  with.** 

Notice  of  Final  Settlement 

State  of  Missouri,     1^^^^^  settlement  of  the  estate  of  R.  R.,deceased. 

County  of .  j 

Notice  is  hereby  given  to  all  creditors,  and  others  interested  in 
the  estate  of  R.  R.,  deceased,  that  I,  J.  D.,  executor  (or  administrator) 
of  said  estate,  intend  to  make  final  settlement  thereof,  at  the  next 

term  of  the  probate  court  of county,  to  be  held  at ,  on 

the day  of ,  19 — .  J.  D.,  Executor. 

This  notice  must  be  published  twenty-eight  days;  there 
must  be  four  weeks  between  the  first  insertion  and  the  be- 
ginning of  the  term  at  which  the  settlement  is  to  made.** 

Proof  of  publication  may  be  in  the  following  form : 

State  of  Missouri,     | 

County  of .  j 

E.  P.,  being  duly  sworn,  upon  his  oath  says  that  he  is  the  pub- 
lisher of  ,  a  newspaper  published  in  the  city  of  • — ^ ,  and 

county  of ,  and  that  the  advertisement  of  notice  of  final  set- 
tlement, estate  of  R.  R.,  deceased,  a  true  copy  of  which  is  attached 
hereto,  was  daily  published  in  editions  of  said  newspaper  for  the 
period  of  twenty-eight  days,  beginning  February  28,  1911,  and  ending 
March  27,  1911,  on  the  following  dates:  February  2S,  etc.  (list  dates), 
the  same  being  published  on  Nos.  852,  353,  354,  356,  357,  358,  359, 
360,  361,  362,  363,  364,  365,  1,  2,  3,  4,  5,  6,  7,  8,  9,  10,  11,  12,  13.  14,  15, 
of  volumes  V  and  VI  of  said  newspaper.  E.  F. 

Sworn  to  and  subscribed  before  me  this day  of ,  19 — . 

Jly  term  expires ,  19 — . 


[Seal.]  Notary  Tublic. 

44  Rev.  St.  1909;  §  238,  as  amended  by  Laws  1911,  p.  84,  §  2. 
46  Brashcars  v.  Hicklin,  54  Mo.  102. 

46  Van  Liew  v.  Barrett  &  Barrett  Beverage  Co.,  144  Mo.  509,  46 
S.  W.  202 ;    State  ex  rel.  Christy  v.  Donegan,  12  Mo.  App.  190. 
4  7  State  ex  rel.  Fountain  v.  Gray,  106  Mo.  526,  17  S.  W.  500. 
4  8  State  ex  rel.  Poiuitain  v.  Gray,  106  Mo.  526,  17  S.  W.  ,500. 
4  9  Rev.  St.  1909,  §  224. 


§380 


SETTLEMENT  OF  ACCOUNTS 


387 


Attach  to  and  file  with  affidavit  a  printed  copy  of  the  no- 
tice as  published. 

§  380.  Form  of  Final  Settlement. — If  it  appear  that  no- 
tice has  been  duly  published  and  that  notice  has  been  fully 
administered,  the  court  must  make  final  settlement,  which 
must  be  conducted  as  annual  settlements.'^''  The  statute 
only  contemplates  the  giving-  of  notice  in  cases  of  final  set- 
tlement. When  annual  or  partial  settlements  are  made  they 
may  be  filed  and  noticed  upon  the  record,  and  their  ex- 
amination and  approval  be  deferred  until  the  final  settle- 
ment. 

The  following  form  will  indicate  the  method  of  making 
up  the  account  current  for  a  final  settlement : 


In  the  Probate  Court  of 


County,  Missouri,  at 


Term,  A.  D.  19- 


Final   Settlement  of  William  Law,   Administrator  of  the   Estate 
of  Richard  Roirers,  deceased. 


Month  L)ate 


1912 

June 

20 

July 

20 

Aug. 

CO 

Oct. 

15 

Nov. 

1 

Your  administrator  charges 
himself  as  follows: 

To    balance   as    shown    as   per 

first    settlement 

To  cash  received  from  J.  J.  ]Mc- 
Gee  in  payment  of  note  No. 
2  as  listed  in  inventory,  .$220 
principal  and  $0.75  on  inter- 
est    


To  cash  received  from  sale  of 
household    furniture    located 

at    as   per    order    of 

court  

t^rom  Auburn  Banking  Compa- 
ny, semi-annual  dividend  on 
25  shares  capital  stock  own- 
ed by  deceased 

To  cash  received  of  Guy  Stan- 
ley in  payment  of  account 
due  deceased  listed  in  inven- 
tory     


No.  of 
Vouch. 


DEBIT 


Dollars  Cts 


1,895 


22G 


2G5 


130 


00 


75 


00 


00 


00 


CREDIT 


Dollars  Cts. 


L'-ISG  1 75 


50  Rev.  St.  1909,  §  230. 


38S 


SETTLEMENT   OF   ACCOUNTS 


§  380 


Month  Date 


1912 
July 


Oct. 


Jan. 


1913 
Jau. 


Your  administrator  asks  credit 

for  diisbur.semeuts  as  follows: 

L'alace    Garage,    allowed,    class 


To  John  Carver,  allowed,  class 
5 

To  Kate  Ford  on  note  of  de- 
ceased, due  January  1,  1912, 
allowed,  class  6,  and  ordered 
paid  by  court 

To  John  Reynolds,  account  cur- 
rent, allowed,  class  6,  and  or- 
dered paid 


No.  of 
Vouch. 


To  Eliza  Kimball  on  note  of  de- 
ceased due  January  1,  1912, 
$1,000.00  principal  and  .$00.00 
interest,  allowed,  class  5.... 

To  F.  T.  Haddock,  for  legal 
services,   allowed 

To  probate  clerk,  court  costs.. 

To  William  Law  for  compensa- 
tion   as    administrator 

To  allowance  to  administrator 
on  coujpromise  of  note  No.  2 
of  J.  J.  Mc(}ee  by  order  of 
court,  October  10,  1912 


Balance  on  hand. 


10 


11 


12 


13 

11 
15 

IG 


17 


DEBIT 


Dollars  Cts. 


Dollars  Cts. 


CREDIT 


150 
60 

500 
15 

1,060 

100 

8 

310 
100 


2,303  30 


00 
00 

00 
00 

OO 

00 
30 

00 
00 


2S3  45 


This  balance  consists  of: 
Cash  deposit  with  First  National  Bank $283.45 

Your  administrator  further  represents  to  the  court  that  all  de- 
mands against  said  estate  which  have  been  exhibited  to  your  ad- 
ministrator against  said  estate  have  been  fully  paid  and  satisfied. 

The  following  personal  property  belonging  to  said  estate  as  charged 
in  the  inventory  is  now  in  the  possession  of  your  administrator 
remaining  unsold: 

25  shares  of  the  capital  stock  of  the  Auburn  Bank  Company  of 
Auburn,  Mo.,  appraised  at  $2,500.00. 

Account  due  to  deceased  by  John  Robertson  which  has  proved  un- 
collectible, the  debtor  being  Insolvent,  and  for  which  your  admin- 
istrator asks  that  the  court  shall  give  him  credit. 

(Signed)     WILLIAM  LAW,  Administrator. 


g  381  SETTLEMENT  OF  ACCOUNTS  389 

State  of  Missouri,     ) 

County  of  .  j 

William  Law,  the  adiniuistrator  aforesaid,  upon  his  oath  says 
that  the  foregoing  settlenieut  contains  a  just  and  true  account  of 
all  moneys  received  and  paid  out  by  him  for  and  on  account  of  said 
estate  from  the  time  of  his  appointment  to  this  date. 

(Signed)     WlIvI.IAM  LAW,  Administrator. 

Subscribed  and  sworn  to  before  me  this day  of ,  1913. 


(Style  of  OUice.) 

§  381.     Uncollected    Accounts    to    be    Disposed    of. — If, 

after  making  the  linal  settlement,  there  are  notes,  accounts 
and  choses  in  action  helonging  to  the  estate,  which  were  on 
the  inventory  and  remain  in  the  hands  of  the  executor  or  ad- 
ministrator, uncollected,  the  court  will  allow  him  credit  for 
them,  if  it  be  satisfied  that  such  debts  were  not  due  to  the 
estate,  were  reduced  by  set-ofif,  or  the  debtor  was  insolvent, 
or  the  claim  could  not  have  been  collected  by  the  exercise  of 
due  diligence,"^ ^  or  the  court  may,  in  its  discretion,  order  him 
to  sell  them  at  public  auction,  upon  such  terms  as  it  may  di- 
rect, and  report  the  sale  to  the  court  at  its  next  regular  term, 
and  said  settlement  will  be  continued  to  such  term;^-  or, 
instead  of  selling  such  notes  and  accotints,  if  there  be  no  cred- 
itors, the  court  may  order  them  to  be  turned  over  to  the  heirs 
and  legal  representatives  of  the  deceased,  who  may  sue  for  and 
recover  the  same.°^  But  if  there  be  creditors  the  administra- 
tor may  assign  the  notes,  bonds,  stocks,  accounts,  and  all  other 
evidences  of  debt  of  the  estate  to  creditors,  legatees  and  dis- 
tributees in  discharge  of  an  amount  of  their  claim  equal  to  the 
amount  of  such  bond  or  note."'*  If  the  administrator  holds  a 
claim  which  or  the  proceeds  of  which,  belong  to  another,  he 
may  turn  it  over  to  such  owner  or  beneficiary  without  an  or- 
der of  the  court  authorizing  him  to  do  so.^^  The  time  to  ob- 
tain credit  for  an  insolvent  claim  is  at  the  final  settlement,  and 
the  executor  must  show  that  he  could  not  have  collected  it  by 
proper  diligence.^* 

Bi  Rev.  St.  10<)9.  §  240. 

52  Kev.  St.  1909,  §  241 ;  Branson  v.  Branson,  102  Mo.  G13.  15  S. 
W.  74. 

53  Weil  V.  Jones.  70  Mo.  560. 

5  4  Rev.  St.  1909.  S  21G;  In  re  McCune's  Estate,  76  Mo.  200;  Cow- 
gill  V.  Linnville.  20  Mo.  App.  138:  Marshall  v.  Meyers,  96  Mo.  App. 
643.  70  S.  W.  927 :    Chandler  v.  Steven.'^on,  68  Mo.  450. 

6  5  Christy  v.  Chicago.  B.  i^-  K.  C.  Ry.  Co.,  70  Mo.  App.  43. 
5  6  Julian  V.  Abbott,  73  Mo.  580. 


390  SETTLEMENT  OF  ACCOUNTS  §  382 

§  382.  Discharge  of  the  Executor  or  Administrator. — 
When  a  final  report  is  presented,  the  executor  or  administra- 
tor must  submit  his  vouchers  for  inspection,  and  if  it  appears 
that  all  debts  and  legacies,  and  the  expenses  of  administration 
are  paid,  and  all  claims  in  favor  of  the  estate  are  finally  dis- 
posed of  according  to  law,  the  court  will  approve  the  report, 
and  the  executor  or  administrator  will  be  formally  discharged, 
by  an  entry  in  the  record  of  the  court,  from  the  further  ad- 
ministration of  the  estate.  The  order  made  by  the  court  ap- 
proving the  final  settlement  and  discharging  the  administrator 
has  the  force  of  a  judgment,  and  is  conclusive  on  the  parties 
until  reversed  on  appeal,  and  set  aside  and  opened  up  on  the 
ground  of  fraud  or  mistake."  And  the  fraud  for  which  it 
may  be  impeached  must  consist  in  the  act  of  procuring  the 
approval  of  the  settlement  or  judgment,  and  not  merely  in 
procuring  illegal  allowances  or  the  omission  of  proper  debits 
in  the  account.^ ^  It  cannot  be  attacked  in  a  collateral  proceed- 
ing or  suit  on  the  administrator's  bond,  and  the  amount  ascer- 
tained to  be  due  to  the  estate  from  the  administrator  is  con- 
clusive on  the  sureties  in  the  bond.^^  And,  on  the  other  hand, 
such  settlement  precludes  an  action  on  the  bond  until  it  is  im- 
peached or  set  aside,  except  when  the  estate  is  insolvent,  etc.'''* 
But  if  the  proper  notice  should  not  be  given,  the  settlement 

5  7  stong  V.  Wilkson,  14  Mo.  116;  Jones  v.  Bunker,  20  Mo.  87; 
State,  to  Use  of  Tourville,  v.  Roland,  23  Mo.  9.5 ;  t^liore's  Adm'x  v. 
Coons,  24  Mo.  553 ;  Barton  v.  Barton,  35  Mo.  158 ;  Sullivan  County 
V.  Burgess,  37  Mo.  300:  Murray  v.  Roberts,  48  ^NIo.  .307;  Clyce  v. 
Anderson.  49  Mo.  37 ;  Lewis  v.  Williams,  54  Mo.  200 ;  Townsend  v. 
Townsend.  CO  Mo.  246:  In  re  Davis,  62  Mo.  450;  Williams  v.  Petti- 
crew's  Heirs,  02  Mo.  460:  Slieetz  v.  Kirtley,  62  Mo.  417;  Miller  v. 
Major,  67  Mo.  247 ;  Byerly  v.  Donlin,  72  Mo.  270 ;  Carton  v.  Botts, 
73  Mo.  274 ;  State  ex  rel.  Fountain  v.  Gray,  106  Mo.  526,  17  S.  W. 
.500;  Patterson  v.  Booth,  103  Mo.  402,  15  S.  W.  543;  Mueller  v. 
(iru'nker,  145  Mo.  App.  Oil,  123  S.  W.  469 ;  Goodman  v.  Griffith,  155 
Mo.  App.  574,  134  S.  W.  1051. 

r.  8  Nelson  v.  Barnett,  123  Mo.  564,  27  S.  W.  520;  Patterson  v. 
Booth,  103  Mo.  402,  15  S.  W.  543 ;  Smith  v.  Hanger,  150  Mo.  437,  51 
S.  W.  1052 ;  Baldwin  v,  Davidson,  139  Mo.  118,  40  S.  W.  765,  61  Am. 
St.  Rep.  460 ;   Warden  v.  Busbee,  89  Mo.  App.  113. 

59  State,  to  Use  of  Griffith,  v.  Holt,  27  Mo.  340,  72  Am.  Dec.  273 ; 
State  ex  rel.  Rucker  v.  Rucker,  59  Mo.  17;  Dix  v.  Morris.  66  Mo. 
514 ;  State  ex  rel.  Frost  v.  Creusbauer,  68  Mo.  254 :  State,  to  Use  of 
Edvvards,  v.  Bartlett,  68  Mo.  581 ;  Wolff  v.  Schaeffer,  74  Mo.  154 ; 
State,  to  Use  of  Wolff,  v.  Berning,  74  Mo.  87. 

6  0  Rev.  St.  1909,  §  284;  Woodworth  v.  Wood  worth.  70  Mo.  601; 
State  ex  rel.  Fountain  v.  Gray,  106  Mo.  526,  17  S.  W.  500. 


§  383  SETTLEMENT  OF  ACCOUNTS  391 

will  only  have  the  effect  of  an  annual  settlement.®^  So  where 
the  administrator  was  also  g-uardian,  representing  the  interests 
of  the  ward  as  well  as  of  himself  as  administrator,  his  settle- 
ment as  administrator  was  regarded  as  essentially  ex  parte, 
and  not  conclusive  on  the  rights  of  his  ward."'-  But  if  notice 
be  given  of  the  final  settlement  at  a  given  term  of  the  probate 
court,  and  the  matter  be  formally  continued  to  a  subsequent 
term,  this  will  not  render  the  settlement  subject  to  collateral 
attack."^  * 

§  383.  Opening  Final  Settlement,  etc. — The  probate 
court,  it  has  been  held  in  some  states,  has  power  to  open  an 
account,  or  any  other  proceeding  before  it,  for  the  purpose  of 
correcting  an  error,  upon  a  petition  for  that  purpose,  or  on  a 
settlement  of  a  new^  account."*  And  it  is  contended,  that  it  is 
not  competent  for  the  probate  court  to  decree  that  the  ac- 
count of  an  executor  or  administrator  is  final,  so  as  effectually 
to  discharge  him  from  any  future  liability  to  be  called  before 

81  Berkshire  v.  Hover,  83  Mo.  App.  435. 
6  2  In  re  Wood,  71  Mo.  G23. 
6  3  Smith  V.  Eiirelvu  I'.aiils  24  Kan.  52S. 

64  Stetson  V.  Bass,  9  Pick.  (Mass.)  27;  Boynton  v.  Dyer,  IS  Pick. 
(Mass.)  1 ;    Adams  v.  Adams,  21  Vt.  1G2. 

*  The  supreme  court  of  Kansas,  regarding  all  settlements  by  ad- 
ministrators as  judicial  determinations,  in  a  certain  sense,  has  noted 
the  following  distinction  between  annual  and  final  settlements:  The 
one  is  wholly  ex  parte  and  without  notice ;  the  other  can  be  made 
only  uix)n  due  publication  of  notice  to  creditors  and  all  persons  in- 
terested. The  one  is  made  annually  or  oftener,  at  the  pleasure  of 
the  court ;  the  other  only  when  the  estate  is  fully  administered.  The 
one  is  for  the  information  of  the  court  and  the  convenience  of  the 
administrator  in  the  management  of  the  estate;  the  other  for  the 
protection  of  the  administrator,  and  is  a  final  adjudication  of  the 
respective  rights  and  obligations  of  administrator,  creditors  and 
heirs.  The  one  is  only  prima  facie  correct,  and  is  subject  to  cor- 
rection of  any  errors  or  mistakes  thereafter  discovered  in  it,  with- 
out appeal  or  any  direct  proceeding  to  review  it  or  set  it  aside ;  the 
other  is  conclusive  and  final  unless  set  ftside  by  api>eal  or  direct 
proceeding  therefor  or  impeached  for  fraud.  The  one  is,  so  to  speak, 
a  judgment  de  l>ene  esse;  the  other  a  final  judgment.  Musick  v. 
Beebe,  17  Kan.  47  ;  Shoemaker  v.  Brown,  10  Kan.  393.  Settlements 
with  administrators  and  the  orders  thereon  are  in  practice  so  much 
like  ex  pai'te  proceedings  in  rem  that  the  least  tincture  of  fraud  on 
the  part  of  the  administrator  in  obtaining  a  settlement  or  order  too 
favorable  to  himself  should  invalidate  the  same.  Shoemaker  v. 
Brown,  10  Kan.  393,  Valentine,  J.  A  settlement  may  be  final  as  to 
an  administrator,  as  when  his  letters  are  revoked,  without  being 
technically  a  final  settlement.     Musick  v.  Beebe,  17  Kan.  47. 


392  SETTLEMENT  OF  ACCOUNTS  §  384 

the  court,  to  correct  errors  in  the  former  accounting  or  to  an- 
swer for  matters  not  embraced  in  the  former  account.  But  if 
final  settlement  and  order  of  distribution  be  made  without  an 
order  discharging  the  administrator,  he  would  continue  to  be 
administrator  and  would  be  authorized  to  collect  and  disburse 
the  assets  of  the  estate.*^^  He  should  specify  the  particulars  in 
regard  to  which  he  settles  his  account,  and  he  will  not  there- 
after be  liable  to  be  called  to  account  for  the  same  thing  a 
second  time,  unless  guilty  of  fraud  which  must  be  charged  and 
proved  as  a  ground  for  again  opening  the  matter.*^^  The  final 
settlement  is  only  conclusive  as  to  the  matters  included  in  it. 
If  there  are  matters  not  embraced  in  the  settlement,  it  may  be 
set  aside  in  order  to  have  such  matters  passed  upon.®^ 

§  384.  Final  Discharge. — The  course  of  practice  in  this 
state,  in  relation  to  the  settlement  of  estates,  seems  to  be,  that 
when  a  final  settlement  is  made  the  power  of  the  court  over 
the  accounts  of  the  executor  or  administrator  ceases  and  his 
authority  in  relation  to  the  estate  also  ceases.**^  But  the  court 
may  at  any  time  during  the  term  at  which  the  settlement  is 
made,  on  notice  of  the  executor  or  administrator,  open  up  the 
account  and  re-adjust  it;  or,  if  application  for  such  re-exami- 
nation be  made  at  such  term,  the  proceeding  may  be  continued 
to  the  next  term  for  investigation.*'^  But  after  the  term  has 
passed,  if  no  steps  have  been  taken  in  relation  to  the  settle- 
ment, the  power  of  the  court  over  it  seems  to  be  gone,  and 
it  can  only  be  impeached  or  avoided  on  appeal,  or  by  a  pro- 
ceeding in  a  court  of  equity  on  the  ground  of  fraud  or  mis- 
take.^" But  in  the  case  of  an  insolvent  estate,  any  creditor  or 
other  person  interested  may  bring  suit  on  the  bond  for  waste 

66  Tonnies  v.  Melntyre,  82  Mo.  App.  268;  Francisco  v.  Wiugfield, 
161  Mo.  542,  61  S.  W.  842. 

66  Ex  parte  Seyroour,  14  Pick.  (Mass.)  40;  Adams  v.  Adams,  21 
Vt.  162 :    2  Redf.  on  Wills,  804. 

C7  McClanahan  v.  West,  100  Mo.  309,  13  S.  W.  674;  State,  to  Use 
of  Cardwell,  v.  Stuart,  74  Mo.  App.  182 ;  Van  Liew  v.  Barrett  &  Bar- 
rett Beverage  Co.,  144  Mo.  509,  40  S.  W.  202. 

68  Bailey  v.  Trustees  of  Lincoln  Academy,  12  Mo.  174;  Caldwell 
V.  Lockridjre,  9  Mo.  362 ;  Ro  Bards  v.  Lamb,  76  Mo.  192 ;  Garner  v. 
Tucker,  61  Mo.  427. 

6  9  Caldwell  v.  Lockrldge,  9  Mo.  362. 

70  Allen  V.  Clark,  2  Blackf.  (Ind.)  343;  Bailey  v.  Trustees  of  Lin- 
coln Academy,  12  Mo.  178 ;  Brackenridge  v.  Holland,  2  Blackf.  (Ind.) 
377,  20  Am.  Dec.  123;  Murdock  v.  Holland's  Heirs,  3  Blackf.  (Ind.) 
115 ;  Ray  v.  Doughty,  4  Blackf.  (Ind.)  115 ;  Miller  v.  Major,  67  Mo. 
247. 


§  385  SETTLEMENT  OF  ACCOUNTS  393 

or  mismanagement,  and  in  such  suit  the  settlement  is  only  con- 
clusive as  to  assets  aj)i)lied  and  paid  out  pursuant  to  the  ap- 
portionment made  by  the  court.' ^ 

§  385.  Proceedings  by  Creditor  after  Final  Settlement — 
Liability  of  Heirs, — Suppose,  after  the  tinal  settlement  of  an 
estate  which  has  only  paid  fifty  per  cent,  of  the  indebtedness, 
new  and  additional  assets  should  be  discovered  which  were  not 
administered,  what  course  should  the  creditors  pursue  to  ob- 
tain the  balance  of  their  demands? 

In  such  case,  letters  of  administration  de  bonis  non  mi^ht 
be  issued  to  the  former  or  another  administrator  who  might 
file  an  additional  inventory  and  complete  the  administration. '^^ 
If  he  has  not  been  finally  discharged  he  might  complete  the 
administration  by  collecting  and  disbursing  the  additional  as- 
sets.^^  Or,  if  the  property  of  the  deceased  has  gone  into 
hands  of  the  heirs  or  legatees  by  descent,  they  are  liable  for 
the  debts  of  the  deceased  to  the  value  of  the  property  descend- 
ed, because  the  debts  must  first  be  satisfied  before  they  can 
claim  or  derive  any  benefit  from  the  estate.^*  But  a  bill  in 
equity  cannot  be  maintained  against  the  heirs  to  recover  a  debt 
due  from  the  estate  unless  the  estate  has  been  settled. '''  And 
where  real  estate  descends  the  heirs  cannot  sell  it  to  the  prej- 
udice of  creditors,  as  they  have,  in  fact  no  right  to  it,  except 
the  right  of  possession,  until  the  debts  are  paid.  The  action 
against  the  heirs  to  enforce  payment,  or  to  subject  the  prop- 
erty of  the  deceased  in  their  hands  to  the  payment  of  the  debts, 
is  a  remedy  usually  resorted  to  after  the  close  of  the  admin- 
istration, and  is  generally  more  expeditious  and  direct  than  any 
other. ^"^  Where  heirs  are  proceeded  against  on  account  of 
assets  which  they  have  received  from  their  ancestor,  they  are 
chargeable  only  distributively  and  pro  rata,''^  each  is  liable 

71  Rev.  St.  1009,  §§  2S4.  285;  Wood  worth  v.  Woodworth,  70  Mo. 
601 ;    State  ex  rel.  rouiitain  v.  Gray,  lOG  Mo.  520,  17  S.  W.  500. 

V2  Ratliff  V.  Ma.iroe,  105  Mo.  401,  05  S.  W.  713. 

73Tonnies  v.  Mclntyre.  82  Mo.  App.  268;  Ewing  v.  Par^i^^b,  14S 
Mo.  App.  402.  128  S.  W.  5.38. 

7  4\Vatkins  v.  Holman,  10  Pet.  25,  10  L.  Ed.  873;  Metcalf  v. 
Lamed,  40  Mo.  572;    Elliott  v.  Moore.  5  Hlackf.  (Iiid.)  270. 

"5  Grow  V.  Dobbins,  128  Mass.  271. 

7c  Lauirham  v.  Darby,  13  Mo.  .5.53;  Miller  v.  Woodward.  8  Mo. 
169;    McAllister  v.  Williams.  23  Mo.  App.  280. 

77  Metcalf  V.  Larned.  40  Mo.  572;  Abel  v.  Bnrsett,  3  Blaekf.  find.) 
504;  Pell  v.  Farquar.  3  Blaekf.  (Ind.)  331;  Irvine  v.  Leyh.  102  Mo. 
200,  14  S.  W.  715,  10  S    W.  10;    Walker's  Adni'r  v.  Deavor.  70  Mu. 


394  SETTLEMENT  OF  ACCOUNTS  §  385 

for  his  proportion  of  the  debts  according  to  the  amount  and 
value  of  the  property  received  by  him  from  the  estate  of  the 
deceased.^^  But  if  a  portion  of  those  liable  are  beyond  the 
reach  of  process,  or,  after  due  diligence,  their  proportions  can- 
not be  recovered  from  them,  those  who  are  solvent  and  with- 
in the  jurisdiction  of  the  court,  will  be  liable  for  all  the  debts 
to  the  extent  of  the  estate  they  have  received,  and  no  further. 
And,  whenever  any  heir,  devisee  or  distributee  has  been  com- 
pelled to  pay  more  than  his  just  proportion  of  the  debt,  he 
may  have  his  action,  to  recover  of  the  other  heirs,  devisees  or 
distributees  liable  therefor,  the  amount  he  has  been  compelled 
to  pay  above  his  just  share.  An  execution  issued  against  an 
heir  or  devisee  commands  the  officer  to  levy  of  the  goods  and 
chattels  which  were  of  the  ancestor  or  testator  at  the  time  of 
his  death,  or  of  the  real  estate  of  the  deceased,  and  not  of  his 
own  individual  property.'^ ^ 

It  has  been  held  the  system  provided  by  the  statutes  of  this 
state  for  the  settlement  of  the  estates  of  deceased  persons  is 
intended  to  be  exclusive  of  all  others  and  there  can  be  no  such 
thing  as  an  executor  de  son  tort  as  known  to  the  common 
law.^°  But  where  there  is  a  breach  of  covenant  in  the  an- 
cestor's deed,  after  the  estate  has  been  settled,  the  heirs  and 
devisees  are  liable  to  the  extent  of  the  lands  descended  or  de- 
vised to  them.^^ 

GC4  ;  Fearce  v.  Calhoun,  59  Mo.  271 ;  Barlow  v.  Delaney,  86  Mo.  583  ; 
Brv'an  v.  Blythe,  4  Blackf.  (Tnd.)  249. 

■7  8Ri-j-an  V.  Blythe,  4  Blackf.  (Ind.)  249;  Jeffresou  v.  Morton,  2 
Sauud.  7,  note  4. 

7  9  Rev.  St.  1909,  §  2174;  Baker  v.  Underwood,  63  Mo.  384;  Houck 
V.  Cross,  67  Mo.  151. 

80  Rozelle  V.  Harmon.  103  Mo.  339,  15  S.  W.  432,  12  L.  R.  A.  187. 

siFoote  V.  Clark,  102  Mo.  394,  14  S.  W.  981,  11  L.  R.  A.  861; 
Irvine  v.  Leyh,  102  Mo.  200,  14  S.  W.  715,  16  S.  W.  10;  Miller  v. 
Bledsoe,  61  Mo.  96;  Walker's  Adm'r  v.  Deaver,  79  Mo.  664;  Mc- 
Allister'v.  Williams,  23  Mo.  App.  286;  Beekman  v.  Richardson,  150 
Mo.  430,  51  S.  W.  689 ;    Bramell  v.  Adams,  146  Mo.  70,  47  S.  W.  931. 


§  386  PAETNERSHir    ESTATES  395 

CHAPTER  XXIX 

OF  PAKTNEKSHIP  ESTATES 

§  3S6.  Rights  of  parties,  at  common  law,  on  death  of  a  partner. 

387.  When    the   partnership   property    is    insutticieut   to   pay    the 

debts. 

3SS.  Individual  estate  liable  for  tirm  debts. 

389.  Administration  by  surviving  partner. 

390.  The  bond  re(iuired  of  surviving  partner. 

391.  Duties  and  liabilities — Inventory. 

392.  Allowance  and  payment  of  demands. 
39;{.  Classification  of  demands. 

394.  Settlements  by  surviving  partner. 

395.  Administration  of  partnership  effects  by  executor  or  admin- 

istrator of  deceased  partner. 

396.  Inventory — When  and  how  made. 

397.  Same — Disposal  of  assets. 

398.  Demands  to  be  exhibited,  allowed  and  classed. 

399.  Proceedings  same  as  in  settlement  of  estates. 

400.  Bond  of  administrator  taking  charge  of  partnership  estate. 

401.  Party  administering  may  take  an  appeal. 

§  386.  Rights  of  Parties,  at  Common  Law,  on  Death  of 
a  Partner, — The  death  of  either  partner  is  a  dissolution  of 
the  partnership,  however  numerous  the  association  may  be, 
and  the  property  and  effects  of  the  concern  go  to  the  sur- 
vivor, or  survivors,  for  the  purpose  of  settlement,  and  they 
have  all  the  power  necessary  for  this  purpose  and  no  more.^ 
The  general  principle  is,  that  the  assets  of  a  deceased  part- 
ner are  not  liable  for  debts  contracted  after  the  testator's 
death,  except  under  the  direction  of  the  will  authorizing  a 
continuance  of  the  trade ;  and  new  creditors  are  confined 
to  funds  embarked  in  such  trade,  and  to  the  personal  re- 
sponsibility of  the  party  who  continues  the  trade,  whether 
as  executor,  trustee  or  partner,  unless  the  testator  had,  by 
will,  bound  his  general  assets.^ 

A  community  of  interest  exists  between  the  survivor  and 
the  representative  of  the  deceased  partner;  and  the  repre- 
sentative has  the  right  to  insist  on  the  application  of  the 
partnership   property   to  the  payment  of  the   partnership 

lAnte,  §  213;  Ilargadine  v.  Gibbons,  114  Mo.  5G1,  21  S.  W.  72G ; 
Crook  V.  Tull,  111  Mo.  283.  20  S.  W.  8;  Ilargadine  v.  Gibbons,  45 
Mo.  App.  400 ;    Goodson  v.  Goodson,  140  Mo.  20G,  41  S.  W.  737. 

2  Burwell  v.  Cawood,  2  How.  (U.  S.)  560.  11  L.  Ed.  378. 


396  PAETNERSHIP    ESTATES  §  387 

debts,  and  a  due  distribution  of  the  surplus.  The  fund  de- 
rived from  the  individual  estate  is  primarily  liable  for  the 
individual  debts  of  the  deceased  partner,  and  that  derived 
from  the  partnership  property  for  the  liabilities  of  the  firm.^ 
The  widow  of  the  deceased  partner  is  not  entitled  to  any 
part  of  the  partnership  estate  on  account  of  allowances  un- 
der the  statute  until  all  the  partnership  debts  have  been  sat- 
isfied, although  the  private  estate  be  insufficient  to  supply 
such  allowances.*  No  partner  can  take  any  portion  of  the 
firm  property  and  leave  the  debts  unpaid ;  neither  can  his 
widow  or  heir.^  Even  the  real  estate  of  a  firm  is  consider- 
ed personalty  for  all  the  purposes  of  the  partnership,  and 
until  the  firm  debts  are  paid  the  widow  of  a  deceased  part- 
ner has  no  right  to  share  in  it.^  And  one  partner  cannot 
claim  an  exemption  out  of  his  share  in  the  joint  estate  while 
it  remains  unsevered ;  '^  nor  can  the  surviving  partners  as- 
sign the  partnership  property  for  the  benefit  of  their  indi- 
vidual creditors.^ 

§  387.  Same — When  the  Partnership  Property  is  Insuf- 
ficient.— If  the  partnership  effects  are  not  sufficient  to  dis- 
charge the  debts  of  the  firm,  the  estate  of  the  deceased  part- 
ner is  liable  for  a  proportionate  part  of  the  deficiency ;  and, 
if  the  surviving  partner  is  insolvent,  the  estate  of  the  de- 
ceased partner  is  liable  for  the  whole  of  the  partnership 
debts;  and  it  is  no  objection  to  the  claim  of  a  creditor  that 
he  has  not  used  due  diligence  in  prosecuting  the  surviving 
partner  before  his  insolvency,  because  the  debt  is  joint  and 
several ;  and  equally  a  charge  upon  the  assets  of  the  deceas- 
ed partner,  and  against  the  survivor.  If  the  surviving  part- 
ner has  paid  more  than  his  proportion  of  the  firm's  debts  he 
may  claim  repayment  from  the  estate  of  the  deceased,  and 
will  stand  upon  an  equality  with  his  separate  creditors. 
So,  if  the  deceased  partner  in  his  life,  or  his  administrator, 
after  his  death,  should  pay  more  of  the  partnership  debts 

3  Turner  v.  Hale,  8  Kan.  40;  Hundley  v.  Farris,  103  Mo.  78,  15 
S.  W.  .312,  12  L.  R.  A.  254,  23  Am.  St.  Rep.  863. 

4  Julian  V.  Wriglitsman,  73  Mo.  5G9;  Duhring  v.  Duhring,  20  Mo. 
174;  Willet  v.  Brown,  65  Mo.  138,  27  Am.  Rep.  265;  State  ex  rel. 
Billinffsley  v.  Spencer,  64  Mo.  355,  27  Am.  Rep.  244. 

e  Price  v.  Hunt,  .59  Mo.  258 ;    Ackley  v.  Staehlin,  56  Mo.  558. 

6  Duhring  v.  Duhring.  20  Mo.  174. 

7  Russell  V.  Leunon,  39  Wis.  570,  20  Am.  Rep.  GO ;  Pond  v.  Kim- 
ball, 101  Mass.  10.5. 

8  Tifiiiann  v.  Molliter,  71  Mo.  512. 


§  389  PARTNERSHIP   ESTATES  397 

than  his  proportionate  part,  he  would  have  a  right  of  action 
against  the  sur\'iving  partner  for  contribution.'' 

§  388.  Individual  Estate  Liable  for  Firm  Debts. — 
Whether  a  creditor  of  the  tirm  can  proceed  against  the  es- 
tate of  a  deceased  partner  without  first  exhausting  his  rem- 
edy against  the  partnership  funds,  is  a  question  upon  which 
the  decisions  of  the  courts  of  the  different  states  are  not 
uniform,  but  in  Missouri  he  may  go  at  once,  without  doubt, 
to  the  estate  of  the  deceased  partner,  because  under  the 
laws  of  this  state  each  member  is  liable  individually  for  the 
debts  of  the  firm.^"  The  partnership  debts  cannot  be  paid 
by  the  survivor  out  of  the  individual  interest  of  the  deceas- 
ed partner;  the  surviving  partner  must  pay  his  part  of  such 
debts  remaining  after  exhausting  the  partnership  assets. ^^ 

At  common  law,  as  we  have  said,  the  surviving  partner 
had  a  right  to  the  possession  of  the  partnership  efl'ects,  and 
to  settle  up  the  firm  business,  by  virtue  of  his  survivorship, 
and  the  administrator  of  the  deceased  partner  had  no  right 
to  intermeddle  with  the  firm  effects  or  business.  But  after 
allowing  a  reasonable  time  for  such  settlement  a  court  of 
equity  would  enjoin  the  survivor  from  further  prosecution 
of  the  business,  and  appoint  a  receiver  and  direct  an  ac- 
count to  be  taken,  and  it  was  said  that  the  surviving  part- 
ner could  not  charge  anything  for  his  labor  or  trouble  in 
settling  the  business  of  the  concern. 

§  389.  Administration  by  Surviving  Partner. — Our  stat- 
ute has  provided  a  safe  and  speedy  mode  for  settling  and 
closing  the  business  of  a  firm  on  the  death  of  a  partner.  The 
partnership  being  dissolved  by  that  event,  it  may  be  treat- 
ed as  a  deceased  person,  and  the  firm  eff'ects  administered 
as  the  assets  of  an  estate.  The  surviving  partner,  if  a  resi- 
dent of  the  state,  has  the  first  and  superior  right  to  adminis- 
ter, but  if  he  neglects  to  do  so,  the  executor  or  administra- 
tor of  the  deceased  partner  may  assume  the  administration. 
It  is  not  necessary  that  the  survivor  should  be  appointed 
administrator,  or  that  he  should  receive  letters  of  adminis- 

0  Busby's  Adm'x  v.  Chenault.  13  B.  Mon.  (Ky.)  554. 

loKev.  St.  1000.  §§  2770,  2771;  Eaton  v.  Walsh,  42  Mo.  272;  2 
Rodf.  on  Wills,  270;  Knox  County  Savings  Bank  v.  Cottey.  70  Mo. 
150:   McT^ean  v.  McAllister,  30  Mo.  App.  107. 

11  James  v.  Dixou,  21  Mo.  538;  McClelland  v.  McClelland,  42  Mo. 
App.  32. 


398  PARTNERSHIP   ESTATES  §  390 

tration,  but  he  must  execute  the  bond  required,  and  there- 
upon his  authorit}^  over  the  firm  assets  is  complete.  Indeed 
he  may  proceed  to  wind  up  the  partnership  affairs  without 
giving  bond,  but  if  he  fails  to  give  bond  within  the  time  lim- 
ited, the  executor  or  administrator  of  the  deceased  partner 
may  give  the  bond  required  of  him,  and  then  take  posses- 
sion of  the  partnership  effects.^-  The  powers  of  the  sur- 
viving partner  in  relation  to  settling  up  the  partnership 
business  are  not  changed  or  restricted  by  the  statute,  he 
may  sue  and  be  sued  as  such  surviving  partner  as  at  com- 
mon law,  and  he  may  transfer  a  note  held  by  the  firm  in 
payment  of  a  partnership  debt  or  liability.^^  And  unless 
he  administers  he  is  not  bound  to  pay  the  partnership  debts 
pro  rata,  but  may  pay  any  debt  in  full  if  he  sees  fit  to  do 
so.^*  * 

§  390.  Bond  of  Surviving  Partner. — The  partnership 
administration  must  be  had  in  the  county  in  which  the  part- 
nership business  was  conducted.  And  the  surviving  part- 
ner must  give  bond  in  such  sum  as  the  court  may  deter- 
mine, at  least  double  the  value  of  the  interest  of  the  deceas- 
ed partner  in  the  partnership  assets  with  such  sureties  as 
are  required  in  other  cases  of  administration.  The  bond 
may  be  substantially  as  follows  :^^ 

12  Rev.  St.  1909,  §§  SS,  89;  Barnes  v.  Stanley,  95  Mo.  App.  688, 
G9  S.  W.  682;  Bredow  v.  Mutual  Savings  Institution,  28  Mo.  181; 
Goodson  V.  Goodson,  140  Mo.  206,  41  S.  W.  737. 

13  Bredow  v.  Mutual  Savings  Institution,  28  Mo.  181;  Crook  v. 
Tull,  111  Mo.  283,  20  S.  W.  8 ;  Hargadine  v.  Gibbons,  114  Mo.  561, 
21  S.  W.  726. 

14  Crow  V.  Weidner,  36  Mo.  412. 

15  Rev.  St.  1909,  §  91. 

*  One  member  of  a  firm  having  died  the  survivors  formed  a  new 
partnership  and  continued  in  business.  They  afterward  made  an 
assignment  for  the  benefit  of  their  individual  creditors  and  the  cred- 
itors of  the  new  firm.  The  property  conveyed  by  the  assignment 
was  real  estate,  the  title  to  which  was  vested  in  the  surviving  part- 
ners, but  it  belonged  to  the  old  firm,  for  which  they  held  it  in  trust ; 
it  was  held  that  the  assignee  took  no  title  by  the  assignment.  The 
survivors  administered  on  the  partnership  estate  of  the  old  firm  and 
made  final  settlement,  but  that  would  not  invest  them  with  the  title 
or  right  to  the  property  of  the  partnership  estate  on  hand  at  the 
time  of  the  final  settlement,  it  should  have  been  accounted  for  to 
the  individual  estate  of  the  deceased  partner,  or  so  much  thereof  as 
belonged  to  said  individual  estate,     Tiemann  v.  MoUiter,  71  Mo.  512. 


§    391  PARTNERSHIP    ESTATES  399 


Bond  of  Surviving  Partner 

The  condition  of  the  above  bond  is,  thjit  if  A.  B.,  surviving  part- 
ner of  the  late  firm  of  ,  shall  use  due  diligence  and  fidelity  in 

closing  the  affairs  of  the  late  co-partuershii),  apply  the  property 
thereof  in  legal  allowances,  the  expenses  of  adiuinistration,  the  pay- 
ment of  the  partnership  debts,  and  in  general  to  do  and  perform  ail 
other  acts  and  things  which  are  or  may  hereafter  be  required  of  him 
by  law,  render  an  account  annually,  upon  oath,  to  the  court,  of  all 
partnership  affairs,  including  the  property  owned  by  the  late  firm, 
and  the  debts  due  thereto,  as  well  as  what  may  have  been  paid  by 
the  survivor  towards  the  partnership  debts,  and  what  may  still  be 
due  and  owing  therefor,  and  pay  over  within  two  years,  unless  a 
longer  time  be  allow-ed  by  the  court,  to  the  executor  or  administra- 
tor, the  excess,  if  any  there  be,  beyond  satisfying  the  partnership 
debts  and  costs,  and  expenses  in  closing  the  affairs  of  the  copartner- 
ship, then  the  above  bond  to  be  void ;  otherwise  to  remain  in  full 
force. 

Witness  our  hands  and  seals  this day  of 19 — . 


A B 

C— D [Seal.] 

E F 

Taken  and  approved  by  me  this day  of 19 — ;   and  I 

certify  that  this  bond  wag  signed  and  executed  in  my  presence  and 
acknowledged  by  the  parties  thereto  to  be  their  voluntary  act  and 

deed.  P M , 

Probate  Judge. 

The  bond  of  the  surviving  partner  may  be  executed  in 
the  county  where  he  resides  and  be  acknowledged  before 
and  approved  by  the  court,  or  judge  or  clerk  thereof  in  va- 
cation, and  be  certified  to  the  court  that  granted  adminis- 
tration on  the  estate  of  the  deceased  partner,  subject  to  ap- 
proval or  rejection.^" 

§  391.  Duties  and  Liabilities — Inventory. — Surviving 
partners  administering  upon  partnership  estates,  and  their 
sureties,  have  the  same  powers,  and  are  subject  to  the  same 
duties,  penalties,  provisions  and  proceedings  as  are  enjoin- 
ed upon  or  authorized  against  executors  and  administrators 
and  their  securities  by  law,  so  far  as  the  same  are  applica- 
ble.i^ 

After  giving  bond  and  assuming  the  trust,  the  duties  of 
the  surviving  partner  and  mode  of  procedure  in  relation  to 

16  Rev.  St.  1909,  §  92. 

17  Rev.  St.  1909,  §  100;  Gregory  v.  Menefee,  S3  Mo.  413;  State 
ex  rel.  Christy  v.  Donegan.  12  Mo.  App.  190;  Barnes  v.  Stanley.  95 
Mo.  App.  6SS,  G9  S.  W.  682;  Browning  v,  Richardson,  ISG  Mo.  361, 
85  S.  W.  518. 


400  PARTNERSHIP    ESTATES  §  391 

the  administration  of  the  firm's  estate  are  similar  to  those 
of  an  ordinary  administrator  in  the  settlement  of  the  estate 
of  a  deceased  person.  He  must,  with  the  assistance  and  in 
the  presence  of  two  witnesses,  to  be  appointed  by  the  court, 
or  clerk,  take  an  inventory  of  the  partnership  effects,  and 
cause  the  same  to  be  duly  appraised  by  three  disinterested 
householders  of  the  county,  and  return  the  inventory  and 
appraisement  to  the  court,  advertise  and  sell  the  property, 
etc.,  and  proceed  throughout  as  in  ordinary  cases  of  ad- 
ministration. The  proper  style  of  the  papers  in  the  admin- 
istration may  be  gathered  from  the  following  form  of  in- 
ventory, viz : 

Form  of  Inventory 

Au  inventory  of  the  property  and  effects  of  the  late  firm  of , 

taken  by  A.  B.,  surviving  partner,  in  the  presence  of  H.  I.  and  T.  W., 
witnesses  to  the  same: 

[Set  out  list  of  articles,  etc.,  as  in  other  cases  of  administration.] 

A.  B., 
Witnesses:  Surviviug  Partner. 

H.  I. 

T.  W. 

State  of  ,         \  , 

County  of .  j  ^^" 

A.  B.,  surviving  partner  of  the  late  firm  of  ,  says  that  the 

foregoing  is  a  full  inventory  and  description  of  all  money,  goods, 
chattels  and  estate  real  and  personal,  books,  papers,  and  evidences 
of  debt,  and  of  the  title  of  the  firm,  and  of  all  debts  due  and  to  be- 
come due,  so  far  as  he  can  ascertain  them,  and  that  he  was  not  in- 
debted or  bound  in  any  contract  to  the  firm  at  the  time  of  the  dis- 
solution of  the  same  by  the  death  of  R.  R.,  late  a  member  thereof, 
except  as  stated  in  said  inventory.  A.  B., 

Surviviug  Partner. 

Subscribed  and  sworn  to,  etc, 

§  392.  Allowance  and  Payment  of  Demands. — Where 
the  surviving  partner  administers,  he  may,  if  he  knows  the 
assets  of  the  partnership  to  be  sufficient  to  discharge  all 
the  partnership  debts,  pay  off  demands  against  the  partner- 
ship without  requiring  them  to  be  exhibited,  for  allowance, 
to  the  court,  and  he  must  be  allowed  in  his  settlements 
credit  for  all  the  demands  thus  discharged,  if  the  court  be 
satisfied  of  the  justness  of  such  demands. ^^  But  if  the  as- 
sets are  insufficient  to  pay  all  partnership  debts,  they  must 
be  paid  according  to  their  respective  class  and  pro  rata,  and 
in  such  case,  if  he  refuse,  or  for  any  cause  neglect,  to  pay 

18  Carr  v.  Catlin,  13  Kan.  394. 


§  393  PARTNERSHIP    ESTATES  401 

demands  ag:ainst  the  partnership,  and  where  the  executor 
or  administrator  of  tlie  deceased  i)artner  has  charge  of  the 
partnership  effects,  such  demand  must  be  exhibited  to  the 
proper  court  for  allowance  and  classification,  and  shall  then 
be  paid  in  the  same  manner,  and  the  court  has  the  same  ju- 
risdiction of  demands  thus  presented  that  it  has  of  demands 
against  estates  in  ordinary  cases;  but  no  judgment  or  al- 
lowance of  the  court  against  such  survivor  or  administra- 
tor or  executor  will  bind  any  other  property  of  the  survivor 
or  deceased  partner,  exce]:)t  partnership  effects. ^" 

§  393.  Classification — All  Demands  Presented  or  exhib- 
ited for  allowance  or  payment  against  the  partnership  ef- 
fects shall  be  presented  within  one  year  after  liling  the 
bond  for  administration  thereon,  or  shall  be  forever  barred 
against  the  partnership  effects  administered.  But  in  case 
of  any  demand  against  the  partnership  l:)eing  allowed  and 
paid  by  the  executor  or  administrator  of  the  deceased  part- 
ner, such  payments  so  made  shall  be  a  charge  against  the 
partnership  effects,  and  shall  be  allowed  and  included  in 
the  final  settlement  of  the  partnership  administrator.'-" 
After  there  has  been  a  final  settlement  of  the  partnership 
estate  the  administrator  of  the  individual  estate  of  the  de- 
ceased partner  cannot  maintain  a  suit  against  the  surviving 
partners  and  their  assignees  of  partnership  property,  to  en- 
force payment  of  a  debt  due  from  the  firm  to  the  deceased 
partner;  it  should  have  been  presented  and  adjudicated  in 
the  probate  court  pending  the  administration  of  the  part- 
nership estate. ^^  If  the  partnership  estate  is  indebted  to 
the  estate  of  the  deceased  partner,  and  the  administrator 
of  the  individual  estate  permits  the  partnership  estate  to  be 
settled  without  any  effort  to  have  the  demand  allowed 
against  it,  he  would  be  liable  on  his  bond  to  the  heirs  for 
mismanagement  of  the  estate.--  ^\^^ere  there  is  a  question 
whether  certain  payments  made  to  the  surviving  partner, 
administering  the  partnershi])  estate,  should  be  credited  to 

18  Rev.  St.  1909.  §  !)(i:  Iluiulloy  v.  Farris.  103  Mo.  78,  15  S.  W. 
312.  12  L.  R.  A.  254,  2:5  Am.  St.  Rep.  SG3 ;  Kahn's  Estate,  In  re.  IS 
Mo.  App.  426;  Lyon.s  v.  Murray.  95  Mo.  23,  8  S.  W.  170,  G  Am.  St. 
Rep.  17. 

2  0  Rev.  St.  1909,  §  97. 

21  Titterin^ton  v.  Hooker,  58  Mo.  59.'> :  Hellmaiin  v.  Wellcnkamp. 
71  Mo.  407. 

22  Ilellmann  v.  Wellenkamp,  71  Mo.  407;  State  ex  rel.  J.  D.  Levey 
Clothing  Mfg.  Co.  v.  Shacklett.  73  Mo.  App.  265. 

Kel.Mo.P.G.— •_'(! 


402  PARTNERSHIP   ESTATES  §  393 

the  partnership  or  to  the  individual  partner,  the  partnership 
estate  will  be  preferred,  upon  the  principle  that  the  trust 
is  paramount  to  the  individual  interest."^ 

A  creditor  of  a  firm  cannot  sue  upon  the  bond  of  a  sur- 
viving partner  who  administers  unless  he  presents  his  de- 
mand to  the  surviving  partner  to  be  allowed  within  one 
year,  or  has  the  same  allowed  against  the  estate  of  the  de- 
ceased partner;  and  unless  the  claim  is  thus  presented  it 
will  be  barred;  the  partnership  estate  will  belong  to  those 
who  do  establish  their  claims,  and  all  others  will  be  depriv- 
ed of  any  benefit  in  it.^* 

§  394.  Settlements — The  Surviving  Partner  administer- 
ing must  make  settlements  with  the  court,  and  is  subject 
to  its  order  the  same  as  an  ordinary  administrator.  The 
court  may  cite  him  to  account,  adjudicate  upon  his  account, 
order  payment  of  demands  allowed,  and  require  additional 
bonds,  as  in  the  case  of  an  ordinary  administrator ;  and  the 
parties  interested  have  the  same  remedies  on  his  bond  for 
any  misconduct  or  neglect  of  duty  as  against  administra- 
tors.^^ After  giving  bond  a  surviving  partner  cannot  be  re- 
moved from  the  control  of  the  partnership  eflects  on  the 
ground  of  having  become  a  nonresident. ""^ 

§  395.  Administration  by  Executor  or  Administrator  of 
Deceased  Partner. — If  the  surviving  partner  fail  to  give  the 
bond  required  by  the  statute  within  thirty  days  after  the 
grant  of  letters  on  the  estate  of  the  deceased  partner,  he  is 
liable  to  be  ousted  from  the  possession  of  the  partnership 
effects,  and  divested  of  the  right  to  administer  on  the  same, 
by  the  executor  or  administrator  of  the  deceased  partner, 
if  he  should  give  the  bond  required  of  him  by  the  statute.-^ 
But  unless  the  administrator  of  the  individual  partner's  es- 
tate gives  bond  and  takes  charge  of  the  partnership  assets, 

2  3  Scudder  v.  Ames,  142  Mo.  187,  4-3  S.  W,  G59 ;  Hawkins  &  Co. 
V.  Quinette,  156  Mo.  App.  153,  136  S.  W.  246. 

2  4  State,  to  Use  of  Taylor,  v.  Woods,  .36  Mo.  73;  Titterington  v. 
Hooker,  58  Mo.  593 ;  Hellmann  v.  Wellenkaiup,  71  Mo.  407 ;  Easton 
V.  Courtwrif^ht,  84  Mo.  27. 

25  Rev.  St.  1909,  §  99.  - 

2  6  Green's  Adm'r  v.  Virden,  22  Mo.  506;  Gregory  v.  Menefee,  83 
Mo.  413. 

27  Rev.  St.  1909,  §  93;  Goodson  v.  Goodson,  140  Mo.  206,  41  S.  W. 
737;  James  v.  Dixon,  21  Mo.  538;  Mutual  Sav.  Inst,  v.  Enslin,  37 
Mo.  453;  State  ex  rel.  Kansas  City  Auditorium  Co.  v.  Allen,  45  Mo. 
App.  551;    Bredow  v.  Mutual  Savings  Institution,  28  Mo.  181. 


§  397  PARTNERSHIP   ESTATE8  403 

they  will  remain  in  the  hands  of  the  surviving  partner,  and 

at  his  death  in  the  hands  of  his  executors.^** 

§  396.  Inventory — When  and  How  Made. — If  the  sur- 
viving partner  administers  first  on  the  partnership  estate, 
the  executor  or  administrator  of  the  deceased  partner  must 
include  in  his  inventory  of  the  estate  of  the  deceased  part- 
ner the  gross  amount  of  the  partnership  estate,  as  invento- 
ried and  appraised  by  the  survivor,  but  he  will  be  charged 
with  an  amount  equal  only  to  the  deceased's  proportional 
part  of  the  copartnership  interest.""  This  is  only  for  the 
purpose  of  ascertaining  the  interest  of  the  deceased  partner 
in  the  partnership  effects,^*^  and,  of  course,  he  will  have  to 
account  in  his  settlements  with  the  court  for  what  he  re- 
ceives from  the  surviving  partner,  after  the  settlement  of 
the  partnership  estate,  as  the  portion  due  to  the  deceased 
partner.  If  the  surviving  partner  has  not  administered  on 
the  partnership  estate  at  the  time  the  executor  or  adminis- 
trator of  the  deceased  partner  takes  his  inventory,  he  must 
include  in  it  the  whole  of  the  partnership  estate,  goods, 
chattels,  rights  and  credits,  and  have  them  appraised  at 
their  true  value,  as  in  other  cases,  but  the  administrator 
must  keep  the  partnership  estate  separate  and  distinct  from 
the  individual  estate  and  account  and  report  in  all  respects 
for  the  same  as  a  separate  estate. -'^ 

§  397.  Same — Disposal  of  Assets. — The  surviving  part- 
ner must,  on  demand  of  the  executor  or  administrator  of 
the  deceased  partner,  exhibit  to  the  appraisers  the  partner- 
ship property  belonging  to  the  firm  at  the  time  of  the  death 
of  such  deceased  partner,  for  appraisement;  but  the  prop- 
erty and  effects  must  remain  with,  or  be  delivered  over,  as 
the  case  may  be,  to  the  surviving  partner,  if  he  is  a  resident 
of  this  state,  and  will  undertake  the  management  thereof 
by  giving  bond  according  to  law.  But  if  he  fails  to  assume 
the  administration,  and  it  devolves  upon  the  executor  or  ad- 
ministrator to  administer,  the  survivor  must  surrender  to 
him,  on  demand,  all  the  property  of  the  partnership,  includ- 
ing books  and  papers,  and  all  necessary  documents  pertain- 
ing to  the  same,  and  shall  afford  him  all  reasonable  infor- 

28  Goodson  V.  Goodson,  110  Mo.  20G,  41  S.  W.  737. 
2  9  Rev.  St.  1909,  §  90. 
30  Orrick  v.  Vahoy,  49  Mo.  428. 

3iKev.  St.  1909,  §  S9 ;  Goodson  v.  Goodson,  140  :sro.  206,  41  S. 
W.  737 ;    Pullis  V.  Pullis,  127  Mo.  App.  294.  10.".  S.  W.  275. 


404  PARTNERSHIP    ESTATES  §  398 

mation  and  facilities  for  the  execution  of  his  trust.  Com- 
pliance with  the  law  in  this  respect  by  the  survivor  may  be 
compelled  by  the  court,  by  citation  and  imprisonment  in 
the  county  jail.^- 

§  398.     Demands  to  be  Exhibited,  Allowed  and  Classed. 

— If  the  executor  or  administrator  administer  the  partner- 
ship estate,  all  demands  against  it  must  be  exhibited  to  the 
court  for  allowance  and  classification ;  and  when  a  demand 
is  presented  for  allowance  any  surviving  partner  or  credi- 
tor of  the  firm  may  appear  in  court  and  defend  against  the 
recovery  of  the  claim,  and  may  appeal  from  the  judgment 
of  the  court  upon  making  affidavit  and  giving  bond,  as  in 
other  appeals  from  such  court. ^^ 

§  399.     Proceedings  Same  as  in  Settlement  of  Estates. — 

The  administration  upon  the  partnership  effects  must,  ex- 
cept as  otherwise  provided,  conform  in  all  respects  to  ad- 
ministrations in  ordinary  cases ;  and  the  person  adminis- 
tering upon  the  partnership  effects,  and  his  securities  in  his 
official  bond,  shall  perform  the  same  functions  and  duties, 
be  governed  by  the  same  limitations  and  restrictions  and 
provisions,  and  be  subject  to  the  same  penalties,  liabilities 
and  actions,  as  other  administrators  and  their  securities.^* 

The  executor  or  administrator  of  the  deceased  partner, 
administering  the  partnership,  so  far  as  making  and  filing 
papers  and  reporting  to  the  court  are  concerned,  stands  in 
the  position  of  the  surviving  partner,  and  should  keep  the 
administration  of  the  partnership  effects  separate  from  the 
administration  of  the  estate  of  the  deceased  partner,  and 
make  settlement  of  each  estate  by  itself,  and  not  mix  or 
mingle  them  together.^^ 

§  400.  Bond  of  Administrator. — Before  proceeding  to 
administer  upon  the  partnership  property,  the  executor  or 
administrator  of  the  deceased  partner  must  give  further 
bond,  in  a  sum  at  least  double  the  value  of  the  whole  part- 
nership estate,  secured  as  bonds  in  other  cases  of  adminis- 
tration, conditioned  that  he  will  faithfully  execute  the  trust, 
and  with  no  unnecessary  waste  or  expense;    which  bond 

32  Rev.  St.  1909,  §§  94,  95. 
3  3  Rev.  St.  1909,  §§  96,  99. 

3  4  Rev.  St.  1909,  §  99;    Barnes  v.  Stanley,  95  Mo.  App.  688,  69  S. 
W.  682;    Browning'  v.  Richardson,  186  Mo.  361,  85  S.  W.  518. 
3  5  Turner  v.  Hule,  8  Kan.  40. 


§  401  PARTNERSHIP    ESTATES  405 

may  be  enforced  like  other  administration  bonds.'*  Such 
bond  may  be  as  follows : 

Bond  of  Administrator  Administering  Upon  Partnership 
Property 

We,  A.  B.,  as  principal,  and  C.  D.  and  E.  V.,  as  securities,  are 

held  and  firmly  bound  unto  tlie  state  of in  tlie  sum  of 

dollars,  for  tlie  payment  of  wliich  we  bind  ourselves  firmly  by  tliese 
presents. 

Tlie  condition  of  the  above  bond  is,  that  whereas,  said  A.  B.  is 
the  administrator  of  the  estate  of  O.  R..  deceased,  late  a  partner  in 

the  lirm  of ,  and  P.  Q..  the  surviving  partner,  has  neglected 

for  the  space  of  thirty  days  after  letters  of  administration  had  been 
granted  to  the  said  A.  B.  on  the  estate  of  said  O.  K.,  as  aforesaid, 
to  give  the  bond  required  by  law  to  entitle  him  to  retain  possession 
of.  and  administer  the  partnership  effects,  and  the  settlement  of  the 
affairs  of  said  firm  has  devolved  upon  the  said  A.  B.,  as  such  ad- 
ministrator of  said  O.  R.,  deceased.  Now,  if  the  said  A.  B..  admin- 
istrator as  aforesaid,  shall  faithfully  execute  said  trust,  and  with 
no  unnecessary  waste  or  expense  (and  perform  all  other  things  touch- 
ing such  trust  re(iuired  by  law,  or  the  order  or  decree  of  any  court 
having  jurisdiction),  then  this  bond  to  be  void,  otherwise  to  remain 
in  full  force. 

Witness  our  hands  and  seals,  this  day  of ,  19 — . 

A B 

C D [Seal.] 

E F 

Taken  and  approved,  this  day  of  ,  19 — ;  and  I  cer- 
tify that  the  said  bond  was  executed  in  my  presence. 

J.  R., 
Clerk  of  Probate  Court. 

§  401.  An  Administrator  or  Surviving  Partner,  having; 
charge  of  a  partnership  estate,  may  take  an  appeal  from  the 
probate  court  to  the  circuit  court  without  giving  bond." 
unless  it  be  from  an  order  of  the  court  requiring  him  to 
give  other  and  further  security,  or  from  an  order  revoking 
his  letters,  or  from  a  final  settlement,  or  from  any  order  or 
action  of  the  court  when  the  interest  of  the  administrator 
is  opposed  to  the  interest  of  the  estate." 

30  Rev.  St.  1909.  §  93;    James  v.  Dixon.  L*l  Mo.  538. 
3  7  Bruening's  Estate  v.  Oberschelp.  4L'  Mo.  270. 
3s  Rev.  St.  1909.  §  292. 


40G  PUBLIC   ADMINISTRATORS  §  102 

CHAPTER  XXX 
OF  PUBLIC  ADMINISTRATORS 

§  402.  Election,  oath,  bond,  term  of  office  and  removal. 

403.  AVliat  estates  and  when  he  may  administer. 

404.  To  give  notice  of  having  talven  charge  of  estate. 

405.  Suit  for  collection  of  debts. 

406.  General  powers,  duties  and  liabilities  same  as  other  admin- 

istrators. 

407.  May  close  administration  of  unsettled  estate  after  term  of 

office. 

§  402.  The  Election,  Oath,  Bond,  Term  of  Office  and 
Removal. — With  a  view  to  the  prevention  of  the  loss  of  or 
injury  to  assets  of  esiates  of  deceased  persons  where  no 
executor  qualifies  or  no  administrator  is  appointed  under 
the  general  law,  statutes  provide  a  bonded  ofificer,  termed 
a  public  administrator,  who  is  charged  with  the  duty  of 
and  who  has  the  right  to  assume  charge  of  estates  where 
such  conditions  exist. ^  There  is  a  public  administrator  in 
each  and  every  county  in  the  state  of  Missouri,  and  in  the 
city  of  St.  Louis.  He  is  also  ex-officio  public  guardian  and 
curator  in  his  county.  Formerly  he  was,  in  most  counties, 
appointed  by  the  county  court,  but  now  he  is  elected  by 
the  people.  The  first  election  therefore  was  at  the  general 
election  in'  1868,  and  their  election  was  provided  for  again  in 
1880,  and  will  recur  every  four  years  thereafter.  Before 
entering  on  the  duties  of  his  office,  he  must  take  the  oath  re- 
quired by  the  constitution,  and  enter  into  bond,  to  the  state 
of  Missouri,  in  a  sum  not  less  than  ten  thousand  dollars,  with 
two  or  more  securities  approved  by  the  court  and  condi- 
tioned that  he  will  faithfully  discharge  all  the  duties  of  his 
office.  He  must  do  this  before  the  first  day  of  January  fol- 
lowing his  election,  and  the  court  must  require  him  to  make 
a  statement  annually,  under  oath  of  the  amount  of  property 
in  his  hands  or  under  his  control  as  such  administrator,  for 
the  purpose  of  ascertaining  the  amount  of  bond  necessary 
to  secure  such  property.  And  the  court  may  from  time  to 
time,  as  occasion  shall  require,  demand  additional  security 
of  such  administrator,  and  in  default  of  giving  the  same 
within  twenty  days  after  such  demand,  may  remove  the  ad- 
ministrator and  appoint  another, 

1  riollingsworth  v.  Jeffries,  121  Mo.  App.  GGO,  97  S.  W.  6.12. 


§  403  PUBLIC   ADMINISTRATORS  407 

His  certificate  of  election,  official  oath  and  bond,  must 
be  filed  and  recorded  in  the  office  of  the  clerk  of  said  court ; 
and  copies  thereof,  certified  under  the  seal  of  such  court, 
will  be  evidence.  Any  person  injured  by  the  breach  of  such 
bond,  may  sue  upon  the  same  in  the  name  of  the  state  for 
his  own  use.  He  is  entitled  to  the  same  compensation  for 
his  services  as  executors  and  administrators,  unless  the 
court  for  special  reasons  allow  a  higher  compensation.  He 
may  be  removed  from  office  in  the  same  manner  and  for 
the  same  causes  as  judges  of  the  county  court. ^ 

§  403.  What  Estates  and  When  He  May  Administer. — 
He  must  take  into  his  charge  and  custody  the  estates  of  all 
deceased  persons  and  the  person  and  estates  of  minors  and 
of  insane  persons  in  his  county  in  the  following  instances : 

1.  When  a  stranger  dies  intestate  in  the  county  without 
relations,  or  dies  leaving  a  will,  and  the  executor  named  is 
absent  or  fails  to  qualify. 

2.  When  persons  die  intestate  without  any  known  heirs. 

3.  When  persons  unknown  die,  or  are  found  dead,  in 
the  county. 

4.  When  money,  property,  papers  or  other  estate  are  left 
in  a  situation  exposed  to  loss  or  damage,  and  no  other  per- 
son administers  on  the  same. 

5.  When  any  estate  of  any  person  who  dies  intestate 
therein,  or  elsewhere,  is  left  in  the  county,  liable  to  be  in- 
jured, wasted,  or  lost,  when  said  intestate  does  not  leave  a 
known  husband,  widow,  or  heir  in  this  state. 

6.  The  persons  of  all  minors  under  the  age  of  fourteen 
years,  whose  parents  are  dead,  and  who  have  no  legal  guard- 
ian. 

7.  The  estates  of  all  minors  whose  parents  are  dead,  or 
if  living  refuse  or  neglect  to  qualify  as  curator,  or,  having 
qualified,  have  been  removed,  or  are,  from  any  cause,  incom- 
petent to  act  as  such  curator,  and  there  is  no  one  authorized 
by  law  to  take  care  of  and  manage  their  estate. 

8.  The  estates  or  person  and  estate  of  all  insane  persons 
in  his  county  wdio  have  no  legal  guardian,  and  no  one  com- 
petent to  take  charge  of  such  estate,  or  to  act  as  such  guard- 

2  Rev.  St.  1909,  §§  299,  300,  301 ;  State  ex  rel.  Bell  v.  Nolan,  99 
Mo.  5(i9,  12  S.  W.  1047 :  State,  to  Use  of  Lewis,  v.  Wolff,  10  Mo.  App. 
95;  State  ex  rel.  Drach  v.  Cheaney,  52  Mo.  App.  2.")S;  Browning 
V.  Richardson.  ISO  Mo.  361,  S5  S.  W.  518 ;  State  v.  Holman,  90  Mo. 
App.  193,  OS  S.  W.  905. 


408  PUBLIC    ADMINISTRATORS  §  403 

ian,  can  be  found,  or  is  known  to  the  court  having  juris- 
diction, who  will  qualify. 

9.  When  from  any  other  good  cause,  said  court  shall  or- 
der him  to  take  possession  of  any  estate  to  prevent  its  being 
injured,  wasted,  purloined  or  lost.^ 

The  fourth,  fifth  and  sixth  subdivisions  only  authorize  the 
public  administrator  to  take  charge  of  property  which  was 
in  his  county  at  the  time  of  the  death  of  the  deceased ; 
therefore,  when  an  administratrix  in  Louisiana  made  final 
settlement  there,  but  fraudulently  converted  to  her  own  use 
a  part  of  the  assets,  as  it  was  alleged,  and  moved  to  Mis- 
souri and  brought  them  with  her,  the  public  administrator 
had  no  right  to  administer,  and  having  taken  possession  of 
the  estate  without  authority  of  law,  the  probate  court  prop- 
erly revoked  his  authority.*  Her  liability  in  the  case  was 
to  the  creditors  and  distributees  directly.  The  facts  that 
the  intestate  died  away  from  home,  that  the  property  was 
in  the  county  where  he  resided,  that  there  was  no  one  there 
capable  of  taking  care  of  it,  and  that  it  was  liable  to  de- 
terioration and  loss,  are  sufficient  to  authorize  the  public 
administrator  to  take  charge  of  the  estate. ° 

The  language  of  the  statute  in  subdivision  four,  as  given 
in  this  section,  in  the  use  of  the  language  "when  money, 
property,  papers  or  other  estate  are  left  in  a  condition  ex- 
posed to  loss  and  damage  and  no  other  person  administers 
on  the  same,"  has  reference  in  the  use  of  the  word  "papers'' 
to  such  documents  as  constitute  the  assets  or  a  part  of  the 
assets  of  the  estate.  It  has  been  held  that  stock  certificates 
in  a  foreign  corporation  are  not  assets  of  which  a  local  ex- 
ecutor or  administrator  has  the  right  to  take  possession 
or  which  authorize  the  appointment  of  an  administrator  in 
this  state.  Stock  certificates  are  not  the  stock  itself,  but 
are  only  evidence  of  the  ownership  of  the  stock."  The  Kan- 
sas City  Court  of  Appeals  has  held  that  a  relative  of  the 
deceased  who  takes  up  his  residence  in  this  state  after  the 

3  Rev.  St.  1909,  §  302.  4  McCabe  v.  Lewis,  76  Mo.  296. 

5  Adams  v.  Larriinore,  51  Mo.  130 ;  Headlee  v.  Cloud,  51  Mo.  301 ; 
Dunn  V.  Germau-Anierican  Bank,  109  Mo.  90,  18  S.  W.  1139 ;  Mc- 
Cabe V.  Lewis,  7G  Mo.  290;  Lewis  v.  McCabe,  76  Mo.  307;  Leeper 
V.  Taylor,  111  Mo.  312,  19  S.  W.  955;  Green  v.  Tittman,  124  Mo. 
372,  27  S.  W.  391 ;  Tittman  v.  Edwards,  27  Mo.  App.  492 ;  Becraft 
V.  Lewis,  41  Mo.  App.  546. 

6  Richardson  v.  Buscb,  19S  Mo.  174,  95  S.  W.  894,  115  Am.  St. 
Rep.  472. 


§  404  PUBLIC   ADMINISTRATORS  409 

death  of  the  deceased  and  for  the  purj^ose  of  qualifying 
as  his  achiiinistrator  has  a  right  to  the  appointment  prior  to 
that  of  a  pul)hc  administrator.  This  decision  proceeds  upon 
the  theory  that  the  question  of  residence  or  nonresidence 
is  one  of  intention,  and  the  mere  fact  that  the  especial  reason 
for  taking  up  a  residence  in  this  state  was  to  qualify  as  an 
administrator  is  not  determinative  of  the  question  of  the 
right  to  administer  as  against  the  one  so  doing. '^ 

The  probate  court  may  order  the  pul)lic  administrator 
to  take  charge  of  an  estate,  in  any  case,  in  which  no  ad- 
ministration has  been  taken  out  under  the  general  law.  He 
may  take  charge  of  an  estate  in  the  cases  specified  in  the 
statute  without  an  order  of  court,  but  if  the  facts  did  not 
authorize  him  to  do  so,  he  will  be  regarded  as  the  adminis- 
trator only  until  another  is  appointed.^  He  may  take  charge 
of  a  partnership  estate,  when  ordered  under  like  circum- 
stances, and  cannot  be  divested  of  it  in  a  collateral  proceed- 
ing, but  must  turn  it  over  to  the  proper  administrator  should 
one  be  appointed.  But  where  there  is  an  existing  adminis- 
trator having  charge  of  the  partnership  estate,  the  court 
cannot  order  the  estate  into  the  hands  of  the  public  ad- 
ministrator. **  The  public  administrator  may  be  appointed 
in  his  individual  capacity  administrator  of  an  estate  in  his 
charge  as  public  administrator,  and  in  such  case  wdll  be 
considered  as  private  administrator  of  the  estate.^** 

§  404.  Notice  of  Administering  on  Estate. — Immediately 
upon  taking  charge  of  the  estate  (except  those  taken  charge 
of  under  the  order  of  the  court),  for  the  purpose  of  adminis- 
tering the  same,  he  must  file  a  notice  of  the  fact  in  the  ofifice 
of  the  clerk  of  the  probate  court. ^^ 

Form  of  notice  where  public  administrator  takes  charge 
without  order  of  court : 

The  State  of  Missouri, 

County  of  . 

Creditors  and  all  other  persons  interested  in  the  estate  of  A.  B.. 
late  of  count.v.  deceased,  are  hereby  nt)titied  that  the  uuder- 


T  Stevens  v.  Larwill,  110  Mo.  App.  140,  84  S.  W.  113. 
>•  Leeper  v.  Taylor,  111  Mo.  313.  19  S.  W.  955 ;    In  re  Iliirs  Estate, 
102  Mo.  App.  617,  77  S.  W.  110. 
a  rieadlee  v.  Cloud.  51  Mo.  301. 

10  Macey  v.  Stark.  110  Mo.  481,  21  S.  W.  1088. 

11  Rev.   St.   1909.    S   .305. 


410  PUBLIC   ADMINISTRATORS  §  404 

signed  public  aduiinistrator  of  the  county  aforesaid,  has  this  day 
taken  cliarge  of  said  estate  for  the  purpose  of  administering  the 
same.  E-  'J^-» 

Dated ,  19 — . 

Form  of  notice  where  letters  are  granted  by  court  to  pub- 
lic administrator: 

Letters  of  administration  on  estate  of  A.  B.,  deceased,  were  grant- 
ed to  the  undersigned  by  the  probate  coui-t  of  county,  Mis- 
souri, on ,  19 — '.    Persons  having  claims  against  said  estate 

are  required  to  exhibit  same  to  the  undersigned  for  allowance  within 
six  months  after  date  of  said  letters  or  they  may  be  precluded  for 
any  benefit  of  said  estate,  and  if  such  claims  be  not  exhibited  within 
one  year  from  the  date  of  last  insertion  of  this  publication,  they 
shall  be  forever  barred.  R.  V.,  Public  Administrator. 

Dated  ,  19—. 

Note. — This  form  of  publication  of  notice  is  based  upon  the  statute 
as  revised  in  1911.  Technically  the  administrator,  public  or  private, 
has  no  authority  to  allow  claims,  as  this  is  a  matter  within  the 
province  of  the  court.  If  the  statute  should  be  changed  to  require 
the  presentation  of  claims  within  the  prescribed  period,  the  notice 
should  be  changed  in  phraseology  to  conform  to  the  statute. 

If  he  fail  to  file  the  notice  he  forfeits  and  must  pay  to  the 
persons  entitled  to  the  estate,  the  sum  not  exceeding  two 
hundred  dollars,  to  be  recovered  before  said  court  on  mo- 
tion, and  after  reasonable  notice  thereof  to  the  public  ad- 
ministrator; and  the  court  may,  in  its  discretion,  remove 
him  from  office. ^^  The  omission  to  file  notice  that  he  has 
taken  charge  of  the  estate,  would  not  render  his  adminis- 
tration void  or  invalidate  his  acts,^^  and  he  and  his  sureties 
would  be  liable  for  his  acts  as  public  administrator.^*  When 
he  has  taken  charge  of  an  estate,  and  given  the  proper  no- 
tice, his  acts  cannot  be  attacked  collaterally.^'^ 

It  is  the  duty  of  the  civil  officers  to  inform  the  public  ad- 
ministrator of  all  property  and  estate  known  to  them  which 
is  liable  to  loss,  waste  or  injury,  and  which  by  law  ought  to 
be  in  the  possession  of  the  public  administrator.^** 

§  405.  Smt  for  Collection  of  Debts. — The  public  admin- 
istrator may  institute  all  manner  of  suits  and  prosecutions 
that  may  be  necessary  to  recover  the  property,  debts,  pa- 

12  Rev.  St.  1909,  §  305. 

13  Adams  v.  Larrimore,  51  Mo.  1.30;    McCabe  v.  Lewis,  70  Mo.  296. 

14  State,  to  Use  of  Betts,  v.  Purdy,  67  Mo.  89. 

15  Vermillion  v.  Le  Clare,  89  Mo.  App.  55. 

16  Rev.  St.  1909,  §  306. 


§  407  PUBLIC   ADMINISTRATORS  411 

pers  or  other  estate  of  the  person  deceased  or  of  any  minor, 
or  insane  person  in  his  charge  or  custody/^  And  when  su- 
ing he  is  to  be  regarded  as  any  other  administrator,  and 
need  not  show  that  the  facts  exist  which  authorize  him  to  ad- 
minister.^^  But  the  petition  should  state  his  authority  to 
sue,  by  stating  his  office  and  connection  with  the  estate  he 
represents  in  the  suit.^»  If  he  has  taken  charge  of  an  es- 
tate of  which  he  has  no  jurisdiction  he  cannot  maintain  a 
suit  to  recover  assets  of  the  estate.-" 

§  406.  General  Powers,  Duties  and  Liabilities. — He  has 
power  to  administer  all  oaths  relating  or  belonging  to  the 
exercise  of  his  office,  and  he  and  his  securities  have  the 
same  powers  as  are  conferred  upon,  and  arc  subject  to  the 
same  duties,  penalties,  provisions  and  proceedings  as  are 
enjoined  upon  or  authorized  against  executors  and  adminis- 
trators, guardians  and  curators  by  law,  so  far  as  the  same 
are  applicable.-^ 

§  407.  After  Expiration  of  Term  of  Office,  May  Close 
Administration  of  Unsettled  Estates. — \\  hen  a  public  ad- 
ministrator has  been  appointed  to  take  charge  of  an  estate 
he  shall  continue  the  administration  until  finally  settled, 
unless  he  resigns,  dies,  is  removed  for  cause,  or  is  dis- 
charged in  the  ordinary  course  of  law,  as  other  adminis- 
trators.-^ But  the  probate  court  may,  at  any  time,  for  good 
cause  shown,  order  him  to  account  for  and  deliver  all  money, 
property  and  papers  belonging  to  any  estate  in  his  hands, 
to  his  successor  in  office,  or  to  the  heirs  of  said  estate,  or  to 
any  other  executor  or  administrator  regularly  appointed,  as 
provided  by  law.-^ 

17  Rev.  St.  1909,  §  SOT;  Leeper  v.  Taylor,  111  Mo.  312,  19  S.  W. 
955;    State  ex  rel.  Guenther  v.  King,  7(5  -Mo.  510. 

18  Wetzell  V.  Waters,  IS  Mo.  o9G;  Dunn  v.  German-American  Banlv. 
109  Mo.  90,  18  S.  W.  1139 ;  Green  v.  Tittman,  124  Mo.  372,  27  S.  W. 
391. 

10  Ileadlee  v.  Cloud,  51  Mo.  .301;    Sublett  v.  Nelson,  38  Mo.  4S0. 

20  l^wis  V.  MeCabe,  76  Mo.  307 ;  State  ex  rel.  Gueuther  v.  King, 
76  Mo.  510 ;    State  ex  rel.  Gordon  v.  Kennedy,  73  Mo.  App.  3S  I. 

21  Rev.  St.  1909,  §  303;  State  ex  rel.  Bell  v.  Nolan,  99  Mo.  5G9,  12 
S.  W.  1017;  State  ex  rel.  Catron  v.  Ennis,  79  Mo.  App.  12;  Munday 
V.  Leeper,  120  Mo.  417.  25  S.  W.  381. 

22  Rev.  St.  1909,  §  304;  State  ex  rel.  Rutledse  v.  Holman,  93  Mo. 
App.  611,  67  S.  AV.  747 ;  Warren  v.  Carter,  92  Mo.  288,  5  S.  W.  42 ; 
State  ex  rel.  Gordon  v.  Kennedy,  73  Mo.  App.  384;  State  ex  rel. 
Gordon  v.  Kennedy,  163  Mo.  510,  63  S.  W.  G7S. 

2--iRev.  St.  1900,  §  308;  Maoey  v.  Stark.  116  Mo.  481,  21  S.  W. 
1088 ;    State  ex  rel.  Gordon  v.  Kennedy,  163  :Mo.  510,  63  S.  W.  678. 


Suit  on 
Public  Administra- 
tor's Bond. 


412  PUBLIC   ADMINISTKATOR8  §  407 

Petition  in  Suit  on  Public  Administrator's  Bond  by  his 
Successor  -* 

State  of  Missouri,     1  In  tlie  Circuit  Court  of  County, 

County  of  .J  term,  I'J — . 

The  State  of  Missouri,  at  the  relation  and  to" 
the  use  of  Joseph  Hart,  iJuL>]ic  administrator, 
having  in  charge  and  custody  the  estate  of 
K.  R.,  deceased,  plaintiff, 
vs. 
John  A.  King,  John  Small  and  Oscar  Good,  de- 
fendants. 

Plainti,*?  states,  that  on  the day  of ,  19—,  the  relator, 

Joseph  Hart,  was  duly  elected  public  administrator  within  and  for 

said  county   of  ,   and  qualified  and  entered  upon  the  duties 

of  said  otiice,  and  is  now  the  public  administrator  within  and  for 

said  county ;    that  on  the day  of  — ■ ,  19 — ,  tlie  defendant, 

John  A.  King,  was  duly  elected  and  thereafter  qualified  as  public 
administrator,  within  and  for  said  county  of ,  and  as  such  pub- 
lic administrator,  the  said  King,  as  principal,  and  the  defendants, 
John  Small  and  Oscar  Good,  as  securities,  made  and  executed,  under 
their  hands  and  seals,  their  certain  bond,  or  writing  obligatory  (a 
copy  of  which  is  herewith  filed),  by  which  they  bound  themselves 
unto  the  State  of  Missouri  in  the  sum  of  ten  thousand  dollars,  to 
be  void  upon  the  condition,  however,  tliat  the  said  John  A.  King 
should  faithfully  discharge  all  the  duties  of  his  office  of  public  ad- 
ministrator ;  which  said  bond  or  writing  obligatory  was  duly  ap- 
proved by  the  probate  court  of  said  coimtry,  and  that  thereupon  tlie 
said  defendant  King  entered  upon  the  duties  of  said  office  of  pub- 
lic administrator  within  and  for  said  county. 

Plaintiff  further  states  that  said  defendant,  John  A.  King,  as  .such 
public  administrator,  did  not  Ivcep  and  has  not  kept  the  condition 
of  said  bond,  and  has  not  faithfully  discharged  all  the  duties  of 
his  said  office,  but  to  do  so  has  wholly  failed,  in  this,  tliat  tlie  said 
defendant  King,  by  virtue  of  his  said  office,  upon  the  order  of  the 

probate  court  of  said  county,  duly  made  and  given  on  the  

day  of  ,   19 — ,   took  into  his  charge  and  custody   the  estate 

of  R.  R.,  late  of  said  coimty,  who  died  intestate  on  the day  of 

,    19 — ,   and  proceeded   to  administer  upon   said  estate;    that 

in  the  course  of  the  administration  of  said  estate  the  said  King  re- 
ceived into  his  hands,  as  such  public  administrator,  a  large  amount 
of  assets  belonging  to  said  estate;  that  of  the  said  assets,  so  col- 
lected and  received  as  aforesaid,  he  has  wrongfully  failed  to  pay  over 

or  account  for  the  sum  of dollars ;    that  on  the day  of 

,  19 — ,  the  term  of  office  of  said  defendant  King  as  public  ad- 
ministrator having  expired,  the  said  King  having  l)een  by  order  of 
the  probate  court  removed  from  said  office  of  public  administrator, 
and  the  relator  having  qualified  as  his  successor  as  aforesaid  in  said 
office,  the  probate  court  of  said  county,  having  jurisdiction  of  said 

24  State  ex  rel.  Guentber  v.  King,  70  Mo.  510;  State  ex  rel.  Long- 
don  V.  Sheliiy,  75  Mo.  482. 


g  407  PUBLIC   ADMINISTKATOBS  413 

estate,  did  by  its  order  duly  made  and  giveu,  order  and  direct  the 
relator,  as  public  administrator  to  take  charge  of  said  estate  of  K. 
K.,  deceased,  and  complete  the  admiuistratiou  thereof,  and  that  re- 
lator did  take  charge  of  said  estate,  and  is  now  administering  the 
same. 

And  plaintiff  further  states,  that  said  probate  court,  ou  the  

day  of  ,  10 — ,  tlie  same  being  of  the  term  thereof,  by 

its  order  duly  made,  did  ascertain  that  of  the  assets  received  by  said 
defendant  King,   as  public  administrator,    belonging  to   said   estate, 

the  said  sum  of dollars  yet  remain  in  his  hands  not  accounted 

for  and  did,  for  good  cause  shown,  order  and  direct  said  defendant 
King  to  account  for,  pay  and  deliver  the  same  to  the  relator  as  his 
successor  in   said  offtce;     that,   although   the  relator  has   since  the 

making  of  said  order,  to  wit:    on  the  day  of  ,   19 — , 

demanded   of   said   King   the  said   sum   of dollars,   yet   the 

said  King  has  wi'ongfully,  and  in  violation  of  the  conditions  of  his 
said  bond,  and  in  disr(>gard  of  said  order  of  said  court,  failed  and 

refused   to  pay  or   deliver   said   sum    of dollars   to    relator. 

Wherefore,  plaintiff  states  that  defendant  King  has  broken  the  con- 
dition of  his  said  bond,  in  manner  aforesaid,  and  a  right  of  action 
has  accrued  thereon  to  the  plaintiff.  Wherefore,  in  consideration  of 
the  premises,  the  plaintiff  demands  judgment  for  the  sum  of  ten 
thousand  dollars,  the  penalty  of  said  bond,  and  that  relator's  dam- 
ages be  assessed  at  the  sum  of  — ■ dollars,  and  for  other  proper 

relief.  JOE  HOLT. 

Attorney  for  Plaintiff. 


414  ACTION   AGAINST   EXECUTOKS,  ETC.  §  408 


CHAPTER  XXXI 

OF  PROCEEDINGS  AND  ACTIONS  AGAINST  EXECUTORS  AND 
ADMINISTRATORS  AND  THEIR  SURETIES,  ETC. 

§  40S.  Executors  and  admiuistrators,  when  jointly  or  severally  lia- 
ble. 

409.  Degree  of  care  required  by  them. 

410.  When  personally  liable  on  promise  to  pay  debts,  etc. 

411.  Proceedings  against  administrators  and  sureties. 

412.  Notice — How  given  of  the  proceeding. 

413.  Trial  and  judgment. 

414.  Suit  on  the  bond— Statutory  provisions. 

415.  Decisions  in  relation  to  actions  on  bonds. 

416.  Same. 

§  408.  Executors  and  Administrators,  when  Jointly  or 
Severally  Liable. — Where  there  are  two  or  more  co-execu- 
tors or  co-administrators,  in  all  actions  brought  by  them  in 
their  representative  capacity  on  behalf  of  the  estate  they  must 
all  join  as  plaintiffs.  They  should  all  join  in  any  receipt  given 
on  behalf  of  the  estate,  but  a  receipt  given  by  one  will  be 
prima  facie  evidence  of  payment  of  the  demand  it  refers  to. 

But  the  rule  is  different,  as  to  joinder,  in  actions  against 
executors  and  administrators.  All  who  administer  and  receive 
assets  may  be  joined,  and  it  is  only  necessary  to  sue  such  as 
have  administered ;  but  each  is  liable  separately  for  any  fail- 
ure to  perform  his  duties,  and  for  any  loss  accruing  to  the  es- 
tate or  any  person  interested  in  it  by  his  misconduct  or  omis- 
sion of  duty.  Thus,  where  debts  have  been  lost  for  want  of 
reasonable  care  on  the  part  of  executors,  the  loss  will  be 
charged  upon  those  only  to  whom  the  loss  is  attributable.^ 
And  one  executor  is  liable,  it  seems,  for  any  funds  which  pass 
through  his  hands  into  the  hands  of  his  co-executor,  and  are 
wasted  by  him.^  So  if  two  administrators  sign  a  joint  bond 
with  others  as  sureties  each  administrator  is  held  as  surety 
for  the  other.^  But  an  executor  who  gives  a  separate  bond 
is  not  liable  for  a  loss  caused,  without  negligence  on  his  part, 
by  the  default  of  his  co-executor.* 

1  Sutiierland  v.  Brush,  7  Johns.  Ch.  (N.  Y.)  17,  11  Am.  Dec.  3S3. 

2  Edmonds  v.  Crenshaw,  14  Pet.  106,  10  L.  Ed.  402 ;  Cocker  v. 
Cocker,  2  Mo.  App.  4.51. 

3  Moore  v.  State  ex  rel.  Atkinson,  49  Ind.  558. 

4  McKim  V.  Aulbach,  1.30  Mass.  481,  39  Am.  Rep.  470. 


§  409  ACTION    AGAINST    EXECUTORS,  ETC.  415 

It  is  a  well  settled  rule,  that  one  executor  is  not  liable  for 
waste  by  his  co-executor  any  further  than  he  is  shown  to  have 
known  and  assented  at  the  time  to  such  waste,  or  misappli- 
cation of  assets ;  and  merely  permitting  his  co-executor  to  pos- 
sess the  assets,  without  concurring  in  the  application  of  them 
does  not  render  him  answerable  for  the  conduct  of  his  co-ex- 
ecutor.^ But  where  joint  executors  or  administrators  unite 
in  the  same  bond,  they  are  jointly  and  severally  answerable, 
not  only  each  for  his  own  acts,  but  each  for  the  acts  of  the 
other,  and  both  arc  bound  to  protect  the  joint  securities  from 
the  consequences  of  the  acts  of  either." 

In  an  action  against  two  executors  for  a  legacy,  one  of  them 
may  separately  plead  plene  administravit ;  and,  if  it  be  found 
for  him,  judgment  will  be  rendered  in  his  favor,  and  the  plain- 
tiff may  recover  from  the  other.''  To  authorize  a  joint  judg- 
ment the  proof  must  show  a  joint  liability.® 

§  409.  Degree  of  Care  Required. — Executors  and  ad- 
ministrators stand  in  the  position  of  trustees  of  those  interest- 
ed in  the  estates  upon  which  they  administer,  and  are  liable 
only  for  want  of  due  care  and  skill ;  and  the  measure  of  care 
and  skill  required  of  them  is  the  same  as  that  demanded  of 
bailees  for  hire,  viz. :  that  which  prudent  men  exercise  in  the 
direction  of  their  affairs ;  and  where  they  act  in  good  faith  in 
the  management  of  the  estate,  they  will  not  be  liable  for  loss  of 
property  belonging  to  the  estate,  unless  there  be  clear  proof  of 
neglect  of  duty."  The  care  to  be  exercised  over  property  in 
their  charge  must  depend  upon  the  character  of  the  property, 
its  value,  and  the  convenience  for  making  it  secure,  and  the 
facilities  for  its  being  lost,  stolen  or  destroyed ;  ^°  for  what 
would  be  ordinary  care  in  the  security  and  preservation  of 

s  Peter  v.  Beverly,  10  Pet.  5o2,  9  L.  Ed.  5'J2 ;  Bank  of  the  Uuited 
States  V.  Beverly,  1  How.  (U.  S.)  134,  11  L.  Ed.  75;  Sutberlaud  v. 
Bnisli.  7  Johns.  Ch.  (N.  Y.)  17,  11  Am.  Dec.  383 ;  Sparhawk  v.  Bnell's 
Adui'r,  9  Vt.  41. 

c  Clark  v.  State,  to  Use  of  Williauis,  G  Gill  &  J.  (Md.)  2SS,  26  Am. 
Dec.  570 ;  Little  v.  Knox,  15  Ala.  570,  50  Am.  Dee.  145 ;  Dobyns  v. 
McGovern,  15  Mo.  002 ;    Moore  v.  State  ex  rel.  Atkinson,  49  lud.  .558. 

T  App  V.  Dreisbacb,  2  Rawle  (Pa.)  287,  21  Am.  Dec.  447;  Carmony 
V.  Hoober,  5  Pa.  ,308. 

8  State,  to  l^se  of  Burrough,  v.  Earmer,  54  Mo.  439. 

0  Merritt's  Estate  v.  Merritt,  02  Mo.  1.50;  t^adge  v.  Durn.  51  Mo. 
264;    Julian  v.  Abbott.  73  Mo.  580. 

10  State  ex  rel.  Townsbend  v.  Meagher,  44  Mo.  350.  100  Am.  Dec. 
298;    2  Williams  on  Ex'rs,  1780,  note  1;    Story  on  Bail.  §§  15,  10. 


iia  ACTION   AGAINST    EXECUTORS,  ETC.  §  410 

wearing  apparel  or  other  effects  might  be  gross  carelessness 
in  the  disposition  of  bank  bills  or  valuable  securities.^ ^ 

§  410.  When  Liable  on  His  Promise. — The  promise  of 
an  executor  or  administrator  to  pay  a  debt  of  an  estate  will 
not  render  him  personally  liable,  unless  the  promise  is  made  in 
writing,  and  upon  a  sufficient  consideration.^-  Having  assets 
is  a  sufficient  consideration  to  support  such  a  promise.  But 
an  executor  or  administrator  can  seldom  find  it  expedient  to 
give  a  note  or  accept  an  order  for  a  debt  due  from  the  estate, 
as  any  claim  may  be  filed  and  allowed  by  the  court.  If  he 
does,  however,  promise  in  writing,  or  give  his  note  on  account 
of  the  estate,  he  will  be  personally  liable, ^^  unless  he  stipulates 
therein  to  pay  out  of  the  assets,  although  he  signs  as  admin- 
istrator.^* And  a  co-executor  who  gives  his  note  payable  to 
both  executors,  with  an  endorser  thereon,  for  funds  belong- 
ing to  the  estate,  is  liable  upon  it.^^  * 

§  411.  Proceedings  Against  Executors,  Administrators 
and  Their  Securities. — If,  upon  the  final  settlement  of  any 
executor  or  administrator,  there  be  not  sufficient  assets  to  pay 
all  the  demands  against  the  estate,  any  creditor  may  at  any 
time  before  the  end  of  the  next  succeeding  term  of  court  after 

11  State  ex  rel.  Townsheiid  v.  Meagher,  44  Mo.  356,  100  Am.  Dec. 
298. 

12  Rev.  St.  1909,  §  2783;  Bambrick  v.  Bambrick,  157  Mo.  423,  58 
S.  W.  8. 

13  Hostetter  v.  Hake,  17  Kaii.  81. 

14  Edw.  on  Bills,  p.  78 ;  2  Pars.  Cont.  p.  6;  Studebaker  Bros. 
Mfg.  Co.  V.  Montgomery,  74  Mo.  101 ;  Rittenbouse  v.  Ammerman,  64 
Mo.  197,  27  Am.  Rep.  215. 

15  Faulkner  v.  Faulkner,  73  Mo.  327. 

*  The  commissions  allowed  by  the  law  or  the  courts  constitute  the 
extent  of  the  compensation  to  which  an  executor  or  administrator  is 
entitled.  Gamble  v.  Gibson,  59  Mo.  585.  The  allowance  of  comi>ensa- 
tion  to  a  si>ecial  administrator  is  not  discretionary  with  the  court. 
He  should  be  allowed  a  conunission  on  money  actually  paid  out.  and 
a  reasonable  compensation  for  leasing  real  estate,  for  legal  advice, 
and  for  collecting  and  preserving  the  estate.  Hawkins  v.  Cunning- 
ham, 67  Mo.  415.  The  administrator  may  employ  an  agent  or  attoi'- 
ncy,  if  necessary,  and  pay  for  his  services  out  of  the  estate ;  but  if 
he  acts  in  that  capacity  himself  he  cannot  charge  for  his  services, 
and  if  he  has  a  partner  and  employs  him  as  attorney  for  the  estate 
no  charge  can  be  made  by  the  firm,  unless  the  administrator  is  ex- 
cluded from  all  participation  in  the  compensation  charged.  Gamble 
v.  Gibson,  .59  Mo.  585.  He  will  be  allowed  for  money  necessarily 
expended  in  looking  after  the  interests  of  the  estate.  Williams  v. 
Petticrew's  Heirs,  62  Mo.  400. 


§  411  ACTION    AGAINST    EXECUTORS,   ETC.  417 

such  settlement,  suggest  that  the  executor  or  administrator  has 
not  made  just  accounts  of  the  assets  in  his  hands,  and  apj^ly 
for  an  inquiry  into  the  same.^^ 

A  final  settlement  made  without  having  given  the  proper 
notice  has  no  force  as  against  parties  interested  in  the  estate.^'' 
And  although  an  administrator  has  made  a  final  settlement, 
this  does  not  operate  a  discharge  if  he  has  money  in  his  hands 
belonging  to  the  estate,  and  no  order  of  distribution  has  been 
made;^*  and  when  an  order  of  distribution  is  made,  the  es- 
tate is  not  finally  administered  until  the  order  is  complied 
with.^" 

Petition  of  Creditor  for  Further  Account 

In  the  Matter  of  the  Estate!  -.  ^.^     n    ^    4.    ^       ,.     e  .. 

„   .    -,     ,  ,  In  the  Probate  Court  of county 

of  A.  P...  deceased,  y  ^  -.rw 

_,    „       J     •    ■  i     i.  I  term,  19 — . 

E.  F.,  administrator.  J 

H.  M.  states  that  he  is  a  creditor  of  the  estate  of  A.  B.,  deceased ; 

that  his  demand  was,  at  the  term,  li) — .  of  this  court,  duly 

exhibited  and  allowed  against  said  estate  to  the  amount  and  sum 

of  dollars,  and  assigned  to  the  class;    that  E.  F.,  the 

administrator  of  said  estate,  made  final  settlement  of  liis  administra- 
tion thereof  at  the  last  term  of  this  court,  and  as  appears  from  said 
settlement  there  are  not  sufficient  assets  to  pay  all  the  demands 
against  said  estate ;    that  upon  the  said  demand  of  this  petitioner. 

dollars  have  been  paid,  which  is  the  pro  rata  sum  allowed 

to  him  on  the  basis  of  said  settlement,  leaving  due  and  unpaid  there- 
on the  sum  of dollars.     This  petitioner  further  charges  that 

deceased  left  a  large  estate,  which  if  properly  administered,  was  and 
Is  amply  sufficient  to  pay  and  satisfy  all  the  debts,  funeral  charges, 
and  costs  and  expenses  of  administration ;  but  that  said  admin- 
istrator 'did  not  faithfully  administer  said  estate,  and  lias  not  made 
just  accounts  of  the  assets  in  his  liands,  but  to  do  so  has  utterly 
failed,  in  this: 

1.  That  he  has  carelessly  and  negligently  failed  to  sue  upon  or 
collect  a  note  given  by  one  T.  W.  to  the  deceased  for  the  sum  of 

dollars,  which  was  duly  inventoried  and  came  into  the  hands 

of  said  administrator,  but  suffered  the  said  T.  W.  to  remove  from 
the  state,  by  reason  whereof  said  claim  has  been  and  is  lost  to  said 
estate. 

2.  That  said  administrator  was  indebted  to  the  deceased  at  the 

time  of  his  death,  in  the  sum  of dollars,  in  account,  for  goods 

sold  and  delivered,  which  indebtedness  was  assets  in  the  hands  of 
said  administrator,  but  he  failed  to  inventory  and  account  for  the 
same  to  said  estate. 

18  Rev.  St.  1909,  §  279;  Wilson  v.  Paithraufif,  82  Mo.  App.  437; 
Taylor  v.  Bader,  117  Mo.  App.  72.  9S  S.  W.  80. 

17  Brashears  v.  Hicklin.  ,54  Mo.  102. 

18  Bugle  V.  Webster,  55  Mo.  240. 

18  Morehouse  v.  Ware,  78  Mo.  100;  ante,  §  382. 
Kel.Mo.P.G.— 27 


4:18  ACTION    AGAINST    EXECUTOKS,  ETC.  §  411 

3.  That  in  addition  to  tlie  five  per  cent.,  allowed  him  by  law,  on 
the  amount  of  the  estate  administered  by  him,  as  full  compensutiou 
for  his  expenses  and  trouble,  said  administrator  has  wronj,'fully  and 
illesally  charged  said  estate  and  received  credit  therefor  in  his  said 
settlement,  the  sum  of  dollars  for  his  time,  trouble  and  ex- 
penses of  said  administration. 

4.  That,  through  the  neglect  of  said  administrator,  the  lands  be- 
longing to  the  estate,   viz.:    were  sold  for  the  non-payment 

of  the  taxes  thereon  for  the  years  19 — ,  19 — ,  the  said  administrator 
having  assets  in  his  hands  with  which  to  pay  said  taxes,  and  that  it 
became  necessary  to  pay  out  a  large  sum  additional  to  the  face  of 
the  tax  bill  for  the  original  amount  due  as  such  taxes,  to  redeem 
said  lands  from  said  tax  sale,  to  wit: dollars,  which  is  cred- 
ited in  said  settlement,  but  should  not  be  allowed.  Wherefore  this 
lietitioner  asks  that  the  administration  and  accounts  of  said  admin- 
istrator be  inquired  into  and  that  he  be  required  to  further  account. 

H.  M. 

A  petition  in  an  action  brought  against  an  administrator  by 
a  distributee,  after  final  settlement,  to  charge  him  with  waste 
and  mismanagement  of  the  estate,  is  fatally  defective  if  it  fails 
to  state  that  there  are  no  creditors,  and  that  the  property  alleg- 
ed to  have  been  wasted  was  not  apj^licable  to  the  payment  of 
debts.-*^ 

§  412.  Notice  to  be  Given. — The  executor  or  adminis- 
trator must  be  served  with  notice  of  the  application,  setting 
forth  the  substance  thereof,  ten  days  before  the  same  shall  be 
made  to  the  court;  and  the  notice  may  be  served  by  any  sher- 
iff or  constable,  or  any  competent  witness,  who  shall  make  af- 
fidavit to  the  service,  by  delivering  to  such  executor  or  admin- 
istrator a  copy  of  such  notice,  or  by  leaving  a  copy  of  the 
same  at  his  usual  place  of  abode,  with  some  member  of  his 
family  over  the  age  of  fifteen  years. -^ 

§  413.  Trial  and  Judgment. — Upon  such  application,  the 
court  will  direct  an  issue  to  be  made  up,  whether  there  be 
waste  or  not,  which  must  be  tried  as  demands  against  an  es- 
tate. If  no  waste  be  found  the  applicant  shall  pay  the  costs; 
but  if  waste  be  found,  judgment  must  be  rendered  in  favor 
of  the  applicant  against  the  executor  or  administrator  of  his 
own  proper  estate,  for  the  amount  wasted  and  costs ;  and  the 
money  collected  must  be  applied  to  the  payment  of  the  debt 
due  the  applicant,  and  the  residue  shall  be  apportioned  among 
the  creditors.    If  it  appear  that  such  waste  was  committed  wil- 

20  Foster  v.  Kenrick.  71  Mo.  422;    liev.  St..  19U9,  §  284. 

21  Rev.  St.  1909,  §  2S0. 


§  414  ACTION    AGAINST    EXECUTORS,   ETC.  4 ID 

fully  and  fraudulciiUy,  the  applicant  will  recover  double  the 
amount  wasted,  with  costs,  to  be  apportioned  as  aforesaid.- - 

§  414.  Suit  on  the  Bond  of  an  Executor  or  Adminis- 
trator.— For  a  breach  in  the  condition  of  the  bond  of  an  ex- 
ecutor or  administrator,  an  action  may  be  maintained  against 
any  one  or  more  of  the  obligors  in  the  bond.  The  statute  has 
the  following  provisions  in  relation  to  suits  against  executors 
and  administrators,  viz.:  After  final  settlement  of  any  estate 
found  to  be  insolvent,  any  creditor,  or  other  person  interested 
therein,  may  bring  an  action  of  waste,  or  a  suit  on  the  admin- 
istration bond,  and  assign  and  prove,  as  a  breach  of  the  con- 
dition, any  w^aste  or  mismanagement  of  the  estate,  and  have 
judgment  against  the  executor  or  administrator  for  the  whole 
value  of  the  assets  wasted  or  mismanaged,  as  he  could  have 
done  if  the  whole  had  been  regularly  accounted  for,  with 
costs.' ^  Upon  such  judgment  execution  may  issue  against  the 
private  estate  of  such  executor  or  administrator ;  and  his  set- 
tlement shall  only  be  conclusive  so  far  as  he  has  applied  the 
assets  pursuant  to  the  apportionment  made  by  the  court  for 
the  payment  of  debts.  The  proceeds  of  all  executions,  on  any 
judgment  thus  recovered  shall  be  a|)plied  to  the  payment  of 
the  debts  due  to  the  person  suing;  and  the  residue  shall  be 
apportioned  among  the  creditors.-*  A  final  settlement  pre- 
cludes an  action  on  the  administrator's  bond  except  in  the 
cases  and  under  the  circumstances  provided  for  in  this  sec- 
tion of  the  statute."  The  bond  of  any  executor  or  admin- 
istrator may  be  sued  on  at  the  instance  of  any  party  injured, 
in  the  name  of  the  state,  to  the  use  of  such  party  for  the 
waste  or  mismanagement  of  the  estate,  or  other  breach  of  the 
condition  of  such  bond  ;  and  the  damages  shall  be  assessed 
thereon  as  on  bonds  with  collateral  conditions.  If  the  suit  be 
brought  in  the  name  of  the  party  aggrieved,  he  may  amend  by 
substituting  the  state  as  nominal  plaintiff.-"  In  a  suit  upon  a 
bond,  which  has  been  recorded,  a  certified  copy  of  the  bond 
taken  from  the  record,  or  the  record  itself  may  be  used  and 
admitted  in  evidence.-^ 

22  Rev.  St.  1909,  §§  2S1,  282,  2^3 ;  Taylor  v.  I'.adcr.  117  Mo.  Aw. 
72,  98  S.  W.  80. 

a  3  Rev.  St.  1909,  §  284;  Woodworth  v.  Woodworth,  70  Mo.  001: 
Lewis  v.  Carson,  16  Mo.  App.  342;  State  ex  rel.  Pouiitaiu  v.  Gray, 
lOG  Mo.  52G,  17  S.  W.  500. 

i!4  Rev.  St.  1909.  §§  28r>,  286. 

2r.  Woodworth  v.  Woodworth.  70  Mo.  601. 

2«  State  ex  rel.  Ix)nsidou  v.  Shelby,  75  Mo.  482. 

2  7  Rev.  St.  1909,  §i!  287,  6:}21,  6.32:',,  (VAV',. 


420  ACTION   AGAINST   EXECUTORS,  ETC.  §  414 

The  court,  for  disobedience  to  any  order  made  in  pursuance 
of  the  provisions  of  this  law,  may  issue  attachments,  imprison 
the  body,  or  proceed  by  sequestration  of  land  and  goods,  and 
may  issue  the  process  for  that  purpose,  directed  to  any  county, 
and  cause  it  to  be  served  therein.^^ 

§  415.  Same — Decisions  in  Relation  to  Actions  on  the 
Bond. — For  waste  committed  by  an  administrator,  who  has 
even  been  removed  from  office,  a  suit  without  a  previous  judg- 
ment may  be  brought  against  him  and  his  surety  on  the  bond, 
at  the  relation  of  his  successor.-'''  And  where  the  executor  or 
administrator  absconds,  conceals  himself,  or  resides  without 
tile  jurisdiction  of  the  court,  suit  will  lie  on  the  bond  against 
the  surety,  without  recourse  in  the  first  instance  to  the  prin- 
cipal.^°  An  administrator's  bond  is  joint  and  several  and  may 
be  put  in  suit  by  any  one  aggrieved  against  any  one  of  the  ob- 
ligors, as  soon  as  a  breach  of  it  is  committed  by  the  princi- 
pal.^^ The  suit  on  the  bond  must  be  brought  in  the  name  of 
the  state,  on  the  relation  and  to  the  use  of  any  person  injured 
by  a  breach  of  it.^-  Thus,  an  heir  or  distributee  of  an  estate 
may  sue  in  the  name  of  the  state  for  a  failure  to  account  for 
money  received,  and  his  right  of  action  accrues  as  soon  as 
the  failure  occurs.^^  But  one  claiming  to  be  a  creditor  of  the 
estate  cannot  sue  on  the  bond  until  his  demand  has  been  es- 
tablished as  prescribed  by  statute,  and  the  statute  of  limita- 
tions will  run  in  favor  of  the  administrator  in  such  a  case,  un- 
til such  demand  is  so  established.^^ 

A  failure  to  make  a  complete  inventory  of  the  estate,  is  a 
breach  of  the  administrator's  bond  for  which  an  action  may  be 
maintained.^ ^  So  is  a  misapplication  of  the  rents  and  pro- 
ceeds of  the  real  estate  belonging  to  the  estate."'"*  And  a  fail- 
ure to  make  an  annual  or  final  settlement;  ^^  or  to  pay  a  debt, 

2  8  Rev.  St.  1909,  §  288. 

2  9  State  ex  rel.  Adams  v.  Johnson,  7  Blaekf.  (Tnd.)  529. 

3  0  Couiiuonwealth  v.  Wenrick,  8  Watts  (Pa.)  1.50. 

31  Devoi-e  v.  Pitman,  .3  Mo.  179;'  Oldham  v.  Trimble,  15  Mo.  22.5. 

3  2  State,  to  Use  of  Adams,  v.  Campbell,  10  Mo.  724;  Sickles  v. 
McMauus,  26  Mo.  28 ;  State  ex  rel.  Longdou  v.  Shelby,  75  Mo.  482 ; 
Rev.  St.  1909,  §  287. 

3  3  State,  to  Use  of  Adams,  v.  Campbell,  10  Mo.  724. 

3  4  State,  to  Use  of  Morrison's  Adm'r,  v.  St.  Lemme's  Adm'r,  2.3 
Mo.  344;  State  ex  rel.  Shinn  v.  Stafford,  73  Mo.  6.58;  State  ex  rel. 
Longdon  v.  Sholl).v,  75  Mo.  482. 

3  5  Scott  V.  Governor  of  Missouri,  1  Mo.  680;  Sherwood's  Adm'r 
V.  Hill.  25  Mo.  391. 

36  Stong  V.  Wilkson,  14  Mo.  110. 

3  7  Devore  v.  Pitman,  3  Mo.  179. 


§  415        ACTION  AGAINST  EXECUTORS,  ETC.  421 

(he  having  means)  when  he  ought,  is  a  mal-administration  and 
amounts  to  a  breach  of  the  bond.^**  A  suit  will  lie  on  the 
bond  for  failing  to  comjjly  with  an  order  to  pay  over  the 
funds  to  those  entitled  on  final  settlement, ^^  and  such  order 
is  conclusive  against  the  sureties  in  the  bond/"  The  settle- 
ment by  the  administrator  is  not  open  to  collateral  attack  as 
to  any  matters  it  properly  contains/^  And  a  final  order  of 
discharge  based  on  payment  to  distributees  is  conclusive  until 
set  aside  for  fraud,  etc.*-  So  an  order  allowing  a  demand 
cannot  be  set  aside  in  a  collateral  action  for  want  of  consider- 
ation.*^ If  the  administrator  pledges  notes  of  the  estate  for 
his  own  purposes  he  is  guilty  of  a  devastavit  or  conversion 
of  them,  for  which  his  bondsmen  are  liable,  and  when  he  has 
given  an  additional  bond,  and  might  have  reclaimed  the  notes 
but  did  not,  it  is  a  continuing  devastavit  for  which  both  sets 
of  sureties  are  liable,  and  in  case  of  such  conversion  the  ad- 
ministrator and  his  sureties  are  liable  for  the  full  value  of 
the  notes  converted,  without  any  deduction  for  commissions, 
and  in  an  action  by  a  distributee  based  on  an  order  of  dis- 
tribution, the  order  is  conclusive  of  plaintiff's  right  to  re- 
cover, and  judgment  on  one  bond  without  satisfaction  would 
not  bar  a  suit  on  the  other.**  In  a  suit  by  an  administrator 
de  bonis  non,  on  the  bond  of  the  former  administrator,  if  the 
order  revoking  the  former  letters  and  appointing  plaintiff, 
shows  jurisdiction  in  the  probate  court,  plaintiff's  authority 
cannot  be  questioned.  In  such  a  suit  the  administrator  is  en- 
titled to  credit  for  a  distributive  share  bought  by  him.*"'  If 
the  administrator  misapplies  the  assets  or  uses  the  funds  he 
is  chargeable  with  interest,*"  and  the  failure  to  account  is 
presumptive  evidence  of  such  use.  It  has  been  held  that  no  ac- 
tion will  lie  against  an  administrator  for  failing  to  pay  a  claim 

3  8  Governor  of  Missouri,  to  Use  of  Hill,  v.  Chouteau,  1  Mo.  731; 
State  ex  rel.  Longdon  v.  Shelby,  7.5  Mo.  4S2. 

3  8  State  ex  rel.  Frost  v.  Creusbauer,  GS  Mo.  254. 

40  State  ex  rel.  Frost  v.  Creusbauer,  (JS  Mo.  254;  State,  to  Use  of 
Wolff,  V.  Berning.  74  Mo.  S7 ;  Wolff  v.  Schaeffer,  74  Mo.  154:  Dix 
V.  Morris.  66  Mo.  514  ;  State  ex  rel.  Kucker  v.  Rueker.  59  Mo.  17 ; 
State,  to  Use  of  Griffith,  v.  Holt,  27  Mo.  340,  72  Am.  Dec.  27:3. 

41  Smith  V.  Eureka  Hank.  24  Kan.  52S ;  Kows  v.  Mowery.  57  Iowa, 
20,  10  N.  W.  283 ;    Smith  v.  Sims,  77  Mo.  269. 

4  2  1.,  M.  &  N.  P.  K.  Co.  V.  Schenck,  56  Iowa.  628,  10  N.  W.  215. 

43  Smith  V.  Sims,  77  Mo.  269 ;  State,  to  U.se  of  Burroujih,  v.  Farm- 
er, 54  Mo.  439. 

44  State,  to  Use  of  Wolff,  v.  Berniug.  74  Mo.  87;  Wolff  v.  Schaeffer, 
74  Mo.  154. 

4  5  Scott  V.  Crews.  72  Mo.  261. 
46  .Tulian  v.  Abbott.  73  Mo.  ,580. 


422  ACTION    AGAINST    EXECUTORS,   ETC.  §  415 

against  the  estate  until  an  order  is  made  by  the  probate  court 
authorizing  such  payment.'*'  But  it  seems  that  to  sustain  an 
action  on  the  bond  for  non-payment  of  a  demand  allowed 
against  the  estate,  it  is  not  necessary  to  show  an  order  of 
payment  by  the  probate  court.  It  is  enough  to  show  assets 
sufficient  in  his  hands  applicable  to  that  purpose  and  his  re- 
fusal to  pay.*^  Where  one  administers  in  another  state  which 
is  the  principal  administration,  and  also  takes  out  auxiliary 
administration  in  this  state,  the  sureties  on  the  latter  bond  are 
not  liable  for  the  proceeds  of  land  sold  in  the  other  state 
under  the  principal  administration,  though  the  money  was 
brought  into  this  state.* '•• 

A  creditor  whose  claim  has  been  allowed  and  classed  can- 
not maintain  a  suit  on  the  administrator's  bond  for  failing  to 
sell  land  to  pay  debts. ^"^  Where  a  surety  in  a  replevin  bond 
given  by  an  administrator  was  required  to  pay  the  judgment 
in  the  action  against  the  administrator  on  the  bond  he  may 
recover  on  the  bond  of  the  administrator.^^ 

§  416.  Same. — In  a  suit  by  legatees  against  an  admin- 
istrator on  his  bond,  judgment  should  be  entered  for  the  pen- 
alty of  the  bond,  with  an  award  of  a  single  execution  for  the 
damages  assessed  for  the  breaches.  Distribution  of  the  dam- 
ages among  those  entitled  is  to  be  made  after  they  are  col- 
lected and  brought  into  court. ^- 

A  judgment  rendered  by  a  probate  court  against  an  admin- 
istrator, requiring  him  to  pay  over  to  distributees  a  certain 
sum  of  money  as  assets  of  the  intestate's  estate,  is,  in  the 
absence  of  fraud  or  collusion,  conclusive  upon  the  securities 
of  the  administrator  in  a  suit  on  his  official  bond.^'''" 

If  an  action  cannot  be  maintained  against  the  administra- 
tor (that  is,  if  the  administrator  is  not  liable  to  an  action  for 
misconduct  or  omission  of  duty)  it  cannot  be  maintained 
against  the  securities;  and  a  judgment  in  favor  of  the  admin- 
istrator is  a  bar  to  a  suit,  upon  the  same  subject  matter,  against 
the  securities,  as  they  are  in  privity  with  him.^* 

4T  State  ex  rel.  Sliinn  v.  Stafford,  7.3  Mo.  658. 
4  8  state  ex  rel.  Loii:j;clon  v.  Shelby.  75  Mo.  482. 

4  9  State  ex  rel.  JA'Anett  v.  Osborn,  71  Mo.  86. 

5  0  State  ex  rel.  Robinson  v.  Smith,  68  Mo.  641. 

51  State,  to  Use  of  Walsh,  v.  Farrar,  77  Mo.  175. 

52  State,  to  Use  of  Reyburn,  v.  Rugbies,  20  Mo.  99. 

53  State,  to  Use  of  Gritiith,  v.  Holt,  27  Mo.  .340,  72  Am.  Dec.  273; 
Taylor  v.  Hunt.  .34  Mo.  205. 

■'i  State,  to  Use  of  Hempstead,  v.  Coste,  36  Mo.  437,  88  Am.  Dec. 
14S. 


§  416  ACTION   AGAINST   EXECUTORS,  ETC.  423 

It  is  now  held,  though  with  some  contradiction  in  our  Re- 
ports, that  an  order  of  distribution  by  the  probate  court  is  not 
essential  to  the  right  of  an  heir  to  maintain  a  suit  against  the 
administrator  for  his  distributive  share  of  the  estate.  But 
whenever  all  the  debts  have  been  paid  the  heirs  have  a  vested 
legal  interest  in  the  surplus  of  the  estate,  and  if  the  adminis- 
trator fails  or  refuses  to  make  distribution  among  the  heirs 
and  distributees,  he  is  liable  to  an  action,  at  the  instance  of 
such  distributees.  W'c  think,  however,  it  should  appear,  in 
order  to  maintain  such  an  action,  that  distribution  has  been 
ordered,  or  that  the  debts  have  all  been  paid  and  the  estate 
finally  settled. ■""''•  Suit  can  not  be  brought  on  the  bond  of  an 
executor  or  administrator  in  the  probate  court."'® 

Form  of  Petition   in  Suit  on  Administrator's  Bond 

State  of  Missouri,     |  In  the  Circuit  Court  of County. 

County  of  .  \  ^^-  Term,  19—. 

The  State  of  Missouri,  at  the  relation  and  to  the  use^ 
of  John  Jeffreys,  iilaintifif, 
vs. 

Stephen  Wliite,  John  Fox  and  Hiram  Jones,  de- 
fendants. 

Plaintiff  states  that  on  the  day  of  ,  19 — ,  the  de- 
fendant, Steplion  Wlnte,  as  principal,  and  the  defendants,  .John  Fox 
and  Hiram  Jones,  as  his  securities,  at  the  county  of  Nodaway  and 
State  of  Missouri,  by  their  certain  bond  or  writing  obligatory  of 
that  date,  (a  certified  copy  of  which  is  herewith  filed),  acknowledged 
themselves  to  be  held  and  firmly  bound  unto  the  State  of  Missouri 

in  the  penal  sum  of  dollars,  for  the  payment  of  which,  well 

and  truly  to  be  made,  they  bound  themselves,  their  heirs,  executors 
and  administrators;  that  said  bond  or  writing  obligatory  was  and 
is  subject  to  a  certain  condition  thereunder  written,  that  if  the  said 
Stephen  "White,  as  administrator  of  the  estate  of  George  Jeffreys, 
deceased,  should  faithfully  administer  said  estate,  account  for.  pay 
and  deliver  all  money  and  property  of  said  estate,  and  perform  all 
tilings  touching  said  administration,  required  by  law,  or  the  order 
or  decree  of  any  court  having  jurisdiction,  then  the  above  bond  was 
to  be  void  ;    otherwise  tlie  same  was  to  remain  in  full  force.     That 

afterwards,   on   the  day   of  ,   19 — ,   the  said   Stephen 

White  was  duly  api^ointed  by  the  probate  court  of  said  county  of 
Nodaway  as  administrator  of  the  estate  of  said  George  Jeffreys, 
deceased,  and  his  .said  bond  as  such  administrator  was  duly  ap- 
proved b.v  said  probate  court,  and  he  thereui)on  qualified  as  such  ad- 
ministrator and  entered  upon  the  trust  of  said  administration,  and 

55  State  ex  rel.  Midgett  v.  Matson,  44  Mo.  ."U);") ;  l-'oster  v.  Ivenrick, 
71  Mo.  422;  State  ex  rel.  Shinn  v.  Stafford,  73  Mo.  G5S ;  State  ex  rel. 
Lougdon  v.  Shelby,  75  Mo.  482. 

•"'C  State  ex  rel.  Longdon  v.  Shelby,  75  Mo.  482. 


424  ACTION   AGAINST   EXECUTORS,  ETC.  §  416 

a  Inrse  amount  of  assets  belonging  to  said  estate  came  to  his  hands 
to  be  administered.     Plaintiff,  for  breaches  of  said  bond,   assigns: 

That  on  the day  of ,  19 — ,  the  said  Stephen  White  made 

and  tiled  in  probate  court  his  final  settlement  of  his  accounts  as 
administrator  of  said  estate,  which  was  duly  approved  by  said  court, 
whereby  there  aiipeared,  and  by  the  consideration  of  said  probate 
court  was  found  in  his  hands,  after  the  payment  of  all  demands 
against  said  estate,  the  sum  of dollars,  which  sum,  by  the  or- 
der of  said  probate  court,  duly  made  on  the  day  of  , 

19 — ^  at  the  term  of  said  probate  court,  for  the  year  last 

aforesaid,  was  directed  to  be  paid  by  said  administrator  to  the  law- 
ful heirs  of  said  George  Jeffreys,  deceased.  Plaintiff  states  that  he 
was  the  son  and  is  the  sole  heir  at  law  of  said  decedent,  and  as  such 
is  entitled  to  receive  from  said  administrator  the  whole  of  said  sum, 
so  ordered  to  be  distributed,  as  aforesaid.     That  afterwards,  to  wit: 

on  tbe day  of ,  19 — ,  the  plaintiff  demanded  of  the  said 

defendant.  Stephen  White,  the  said  sum  of ,  and  requested  him 

to  pay  the  same  to  plaintiff,  yet  the  said  Stephen  White,  wrongfully 
and  in  violation  of  the  terms  and  conditions  of  his  said  bond,  neg- 
lected and  refused,  and  does  still  neglect  and  refuse  to  pay  said  sum 
or  any  part  thereof  to  plaintiff,  whereby  an  action  hath  accrued  to 
plaintiff  on  said  bond.  Wherefore  plaintiff  asks  judgment  for  the 
penalty  of  said  bond  and  that  he  have  execution  for  the  said  sum 
of dollars,  to  be  assessed  as  his  damages,  with  interest  there- 
on from  the  said day  of ,  19 — ,  the  date  of  demand  as 

aforesaid,  and  for  costs  of  suit.  JOHN  EDWARDS. 

Attorney  for  Plaintiff. 


§  417  OF  APPEALS  425 


CHAPTER  XXXII 
OF  APPEALS 

§  417.    When  appeals  are  allowed. 

418.  Witliin  what  tinio,  and  how  taken,  affidavit  and  bond. 

419.  Effect  of  appeal — Duty  of  clerk  to  send  up  transcript. 

§  417.  Appeals  are  Allowed  from  the  Decisions  of  the 
Probate  Court  to  the  circuit  court  in  the  following  cases : 

1.  On  all  demands  against  an  estate  exceeding  ten  dol- 
lars. 

2.  On  all  settlements  of  executors  and  administrators. 

3.  On  all  apportionments  among  creditors,  legatees  or 
distributees. 

4.  On  all  orders  directing  the  payment  of  legacies,  mak- 
ing distribution  or  making  allowances  to  the  widow. 

5.  On  all  orders  for  the  sale  of  personal  estate  because 
distribution  cannot  be  made  in  kind. 

6.  On  all  orders  for  the  sale  of  real  estate. 

7.  On  all  judgments  for  waste. 

8.  On  proceedings  to  recover  balances  escheated  to  the 
state. 

9.  On  all  orders  revoking  letters  testamentary  or  of  ad- 
ministration. 

10.  On  orders  making  allowances  for  the  expenses  of 
administration. 

11.  On  orders  for  the  specific  execution  of  contracts. 

12.  On  orders  compelHng  legatees  and  distributees  to 
refund. 

13.  On  the  refusal  of  the  court  to  order  sale  or  real  es- 
tate to  pay  debts  or  legacies. 

14.  On  refusal  of  the  court  to  order  distribution  or  ap- 
portionment among  creditors. 

15.  And  in  all  other  cases  where  there  shall  be  a  final  de- 
cision of  any  matter  arising  under  the  provisions  of  this 
law  (the  administration  law).^ 

The  thirteenth  and  fourteenth  subdivisions  were  added 
by  the  revision  of  1879. 

An  appeal  will  lie  from  a  final  settlement.  Init  not  from 
an  annual  settlement.-     It  will  lie  from  an  order  allowing 

1  Rev.  St.  1909,   §  289. 

2  Baker  v.  Schoeuenian,  41  Mo.  301 ;  Picot  v.  O'Fallon,  85  Mo. 
29,  £6  Am.  Dec.  1.34  ;   Barnes  v.  Bees.  4.3  Mo.  App.  29.". 


426  OF  APPEALS  §  417 

and  classifying  a  claim, ^  and  from  an  order  of  payment, 
and  it  may  be  taken  by  the  administrator  from  such  order 
on  the  ground  that  it  lays  down  a  wrong  rule  of  apportion- 
ment between  the  creditors  of  the  estate/..  An  appeal  will 
lie  from  an  order  of  court  approving  a  sale  of  real  estate, 
and  also  from  an  order  setting  aside  an  order  of  sale  of  real 
estate/  and  from  an  order  removing  a  guardian  of  an  insane 
person,^  and  from  an  order  revoking  letters  of  administra- 
tion." There  is  no  appeal  from  the  decision  of  the  court 
admitting  a  will  to  probate.®  There  must  be  a  final  judg- 
ment.^ It  will  lie  from  settlement  of  partnership  estate;  ^^ 
and' from  a  judgment  against  an  administrator  for  embezzle- 
ment.^^ 

No  appeal  lies  from  an  order  of  a  probate  court  appoint- 
ing an  administrator  of  an  estate,  nor  will  it  lie  from  an 
order  refusing  to  appoint  an  applicant  administrator  of  an 
estate.^-  Mandamus  has  been  held  to  be  the  proper  remedy 
t\hen  the  probate  court  wrongfully  refuses  to  appoint  an 
applicant  administrator,  where  such  applicant  is  qualified 
and  had  prior  right  to  administer.^^ 

§  418.  Within  What  Time  and  How  Taken— Affidavit 
and  Bond. — All  appeals  must  be  taken  during  the  term  at 
which  the  decision  is  made,  or  within  ten  days  thereafter, 
or  if  the  appellant  is  a  nonresident  of  the  county  he  has 
twenty  days  in  which  to  appeal.^*     The  applicant  for  the 

3  Colieu  V.  Atkins.  73  Mo.  163. 

4  In  re  Estate  of  McCune,  76  Mo.  200. 

5  Wilson  V.  Brown's  Adm'r,  21  Mo.  410;  Desloge  v.  Tucker,  196 
Mo.  587,  94  S.  W.  283  ;  Redman  v.  Adams,  88  Mo.  App.  534 ;  Wolff 
V.  Wohlien,  32  Mo.  124. 

6  Hall  V.  County  Court  of  Audrain  County,  27  Mo.  329. 

7  Harney  v.  Scott,  28  Mo.  333 ;  IMullanphy  v.  St.  Louis  County 
Court,  6  Mo.  563 ;    Cuendet  v.  Henderson,  166  Mo.  657.  66  S.  W.  1079. 

8  In  re  Duty's  restate,  27  Mo.  43 ;    Kenrick  v.  Cole,  46  Mo.  85. 
0  Philips  V.  Ward,  51  Mo.  295. 

loMcCrary  v.  Menteer,  58  Mo.  446;  McXeeley's  Estate  v.  Imel, 
140  :Mo.  App.  1,  123  S.  W.  1006. 

11  Ruff  V.  Doyle,  56  Mo.  301. 

12  Flick  V.  Schenk,  212  Mo.  275.  110  S.  W.  1074 ;  Looney  v.  Brown- 
ins,  112  Mo.  App.  195,  86  S.  W.  564. 

13  In  re  Flick's  Estate,  1.36  Mo.  App.  164,  117  S.  W.  93;  State  ex 
rel.  Grover  v.  Fowler,  lOS  Mo.  465,  18  S.  W.  968 ;  State  ex  rel.  Flick 
y.  Reddisli.  148  Mo.  App.  715,  129  S.  W.  58. 

11  Rev.  St.  1909,  §  290;  Stephens  v.  Bernays.  119  Mo.  143,  24  S. 
W.  46;  State  ex  rel.  Simms  v.  Todd,  72  Mo.  288;  In  re  Danforth's 
Estate,  66  Mo.  App.  586 ;    Westpheling  v.  Enright,  60  Mo.  279. 


§  418  OF   APPEALS  427 

appeal,  his  agent  or  attorney,  must  file  an  affidavit  that  the 
appeal  is  not  taken  for  the  purpose  of  vexation  or  delay, 
but  because  the  affiant  believes  that  the  appellant  is  ag- 
grie\'ed  by  the  decision  of  the  court. ^'''  The  appellant  must 
file  in  the  court  the  bond  of  himself  or  some  other  person, 
in  a  sum  and  witli  security  approved  by  the  court,  condi- 
tioned that  he  will  prosecute  the  appeal,  and  pay  all  debts, 
damages  and  costs  that  may  be  adjudged  against  him.  But 
when  an  appeal  is  taken  by  an  executor  or  administrator 
he  is  not  required  to  enter  into  an  appeal  bond  unless  the 
appeal  is  from  an  order  requiring  him  to  give  other  or  fur- 
ther security,  or  from  an  order  revoking  his  letters,^"  or 
from  a  final  settlement,  or  from  any  order  or  action  of  the 
court  when  the  interest  of  the  executor  or  administrator 
becomes  opposed  or  antagonistic  to  the  interests  of  the 
estate.  A  guardian  or  curator  may  appeal  from  any  final 
order  or  judgment  during  the  term  or  within  six  months 
thereafter,  in  like  manner  and  with  same  effect  as  appeals 
are  allowed  to  administrator.^'^  Nor  is  a  surviving  partner 
who  administers  the  partnership  estate,  except  in  cases 
where  other  administrators  would  be  required  to  give 
bond.^'^  He  and  his  sureties  have  the  same  powers  and  are 
subject  to  the  same  duties,  penalties,  provisions  and  pro- 
ceedings as  executors  and  administrators.^" 

When  an  appeal  is  taken  in  vacation,  the  affidavit  and 
bond  required  must  be  filed  in  the  office  of  the  clerk  of  said 
court,  and  be  subject  to  the  approval  of  the  judge  or  clerk.^" 

Affidavit  for  an  Apf^eal 

State  of  Missoiui.      )  t     i^i      t.     .    i.     ^,       .     ^  ^ 

■  County  of  (  '  ^  ^■"''='t*'  Court  of County. 

In  the  Matter  of  the  Estate  of  ^ 

A.  B.  dec-eased.  L  Order — [State  the  nature  of  the  or- 

E.  T.,  administrator.  J        der  or  judjrment  appealed  fronil 

F.  M.,  heins  sworn,  says  that  the  appeal  from  the  above  order  (or 
judgment)  of  the  probate  court  is  not  taken  for  vexation  or  delay, 

15  Rev.  St.  lOOn.  §  201;  Egser  v.  Ejiser,  L"J5  Mo.  116,  12n  S.  W. 
928.  135  Am.  St.  Rep.  560. 

10  Rev.  St.  1000.  §  202:  Smith  v.  Smith's  Estate.  l.'U  Mo.  App. 
201.  110  S.  W.  662;  I'otter  v.  Todd,  TM  Mo.  101;  Schnmcker  v.  Steide- 
mann.  S  Mo.  App.  ;!02. 

17  Rev.   St.  1909.  $  463;    Totter  v.  Todd.  7:'.  Mo.  101. 

isBruening's  Estate  v.  Oberschelp,  42  Mo.  276;  Rev.  St.  1009,  §§ 
98,  100. 

19  Rev.  St.  1000,  §  100. 

20  Rev.  St.  1909,  §  293. 


428  or  APPEALS  §  4:18 

but  because  affiant  believes  that  appellant  is  aggrieved  by  the  deci- 
sion of  the  court.*  F.  M.,  . 


Sworn  to  and  subscribed  before  me,  this  day  of 


19—.  J.  Rm 

(Style  of  Office.) 

Appeal  Bond 

We,  F.  M.,  as  principal,  and  E.  F.,  as  security,  are  held  and  firm- 
ly bound  unto  E.   T.,  administrator   (the  name  of  the  appellee)  of 

the  estate  of  A.  B.,  deceased,  in  the  sum  of  dollars,  for  the 

payment  of  which  we  bind  ourselves  firmly  by  these  presents. 

The  condition  of  this  bond  is,  that  whereas,  the  said  F.  M.  has 

appealed  from  the  order  (or  judgment)  of  the  probate  court  of 

county  (set  out  the  nature  of  the  order  or  judgment,  or  refer  to  it,) 
to  the  circuit  court  of  said  county.  Now,  if  the  said  F.  M.  shall 
prosecute  said  appeal  and  pay  all  the  debts,  damages  and  costs  that 
may  be  adjudged  against  him,  this  bond  to  be  void ;  otherwise  to  be 
in  force. 

Witness  our  hands  and  seals  this day  of ,  19 — . 

F M . 

E F .     [Seal.] 


E- 


Taken  and  approved  by  me  this  day  of  ,  19 — . 

J.  R.,  (Style  of  office). 

§  419.  Effect  of  Appeal— Duty  of  Clerk  to  Send  up  Tran- 
script.— After  the  affidavit  and  bond  have  been  filed,  the 
appeal  must  be  granted,  but  shall  not  be  a  supersedeas  in 
any  other  matter  relating  to  the  administration  of  the  es- 
tate, except  that  from  which  appeal  is  especially  taken. ^^ 
The  effect  of  an  appeal  properly  taken  from  an  order  of  the 
probate  court  is  to  vacate  the  order,  and  the  probate  court 
is  without  further  authority  n  the  premises  pending  the 
appeal.  Where  the  appeal  is  taken  from  an  order  revoking 
letters  of  administration,  the  probate  court  has  no  jurisdic- 
tion to  appoint  another  administrator  until  the  final  deter- 
mination of  the  appeal  in  the  circuit  court.  In  order  to  give 
the  appeal  the  character  of  a  supersedeas  as  to  the  matter 
especially  appealed  from,  it  is  essential  that  the  appeal  bond 
be  executed  and  approved  by  the  court.  As  to  matters  af- 
fecting the  estate  other  than  that  directly  in  issue  the  ap- 
peal does  not  operate  as  a  supersedeas,^^ 

21  Rev.  St.  1909,  §  294. 

2  2  Cuendet  v.  Henderson,  166  Mo.  657,  66  S.  W.  1079. 

*  Where  an  appeal  is  taken  by  a  creditor  of  the  estate,  the  affi- 
davit for  appeal  should  recite  that  he  is  a  creditor  of  the  estate. 
Redman  v.  Adams,  &S  Mo.  App.  534. 


§  419  OF  APPEALS  429 

No  appeal  will  be  dismissed  for  failure  to  file  the  affidavit 
or  bond,  or  because  of  a  defective  affidavit  or  bond,  {provided 
the  appellant  shall  fde  the  affidavit  and  bond  to  the  satis- 
faction of  the  court  in  which  the  appeal  is  pending.^^  The 
clerk  or  judge  must  transmit  to  the  clerk  of  the  circuit  court 
a  certified  transcript  of  the  records  and  proceedings  relat- 
ing to  the  case,  together  with  the  original  papers  in  his 
office  relating  thereto.  And  when  an  appeal  is  allowed  to 
an  administrator  without  an  appeal  bond,  it  is  the  duty 
of  the  clerk  to  certify  the  proper  transcript  and  file  it  and 
the  papers  in  the  case  in  the  appellate  court. -^  The  circuit 
court  must  hear,  try  and  determine  the  cause  anew,  without 
regarding  any  error,  defect  or  other  imperfection  in  the  pro- 
ceedings in  the  probate  court. 

The  clerk  of  the  circuit  court  must  certify  a  transcrijJt  of 
the  record  and  proceedings  and  the  original  papers  to  the 
court  whence  the  appeal  was  taken,  which  must  proceed 
according  to  the  decision  of  the  circuit  court. ^'  A  transcript 
is  an  exact  copy  from  the  records  of  the  court  of  all  that  is 
there  recorded  in  reference  to  the  case  or  proceeding.  The 
original  papers  need  not  be  copied  into  the  transcript,  but 
should  accompany  it  and  be  filed  in  the  appellate  or  lower 
court. 

The  certificate  to  the  transcript  may  be  as  follows: 
State  of ,        ] 

County  of  .  ] 

I,  J.  R.,  clerk  of  the court  within  and  for  said  county,  here- 
by certify  that  the  foregoing  is  a  true,  full  and  complete  transcript 
of  the  record  and  proceedings  had  in  said  court  in  the  case  of  (state 
case)  as  the  same  appears  of  record  in  my  otlice;  and  tliat  the  papers 
hereunto  annexed  are  all  the  original  papers  filed  in  said  court  in 
relation  thereto. 

In  \\'itness  wliereof.  I  have  hereunto  set  my  hand  and  affixed  the 
seal  of  our  said  probate  court,  this  day  of .  19 — . 

[L.  S.]  '  .T.  R., 

Clerk  of  Probate  Court. 

All  probate  courts  and  the  clerks  thereof  must  be  gov- 
erned, in  all  things,  by  the  provisions  of  the  administration 
laws  as  far  as  the  same  may  be  applicable  to  their  jurisdic- 
tion and  duties.-* 


2  3  Rev.  St.  1000,  §  204;    Egger  v.  Egger.  225  Mo.  116,  123  S.  W. 
928,  laS  Am.  St.  Rep.  5G6. 

2  4  Cuendet  v.  Henderson,  106  Mo.  0.")7.  66  S.  W.  1070. 

25  Rev.  St.  1909,  §§  295.  297.  ^o  Rev.  St.  1909.  §  298. 


430  widow's  dower  §  420 

CHAPTER  XXXIII 
OF  WIDOW'S  DOWEIt  IN  REAL  ESTATE  IN  MISSOURI. 

§  420.  Dower — its  uatm-e. 

421.  lu  what  estate  or  property  dower  attaches. 

422.  Widow's  right  of  election  iu  matter  of  dower. 
42;j.  Same — election — notice  to  widow. 

424.  Same — within  what  time  and  how  made. 

425.  Widow's  right  of  election  to  take  a  child's  share  in  lieu  of 

dower. 

426.  Same — effect  of  election. 

427.  How  dower  may  be  avoided  or  released. 

428.  Same — by  jointure. 

429.  Same — by  divorce  or  adultery. 

430.  Same — by  estoppel. 

431.  Proceedings  for  recovery  or  assignment  of  dower. 

432.  Dower  in  personalty. 

433.  Widower  may  inherit. 

§  420.  Dower — Its  Nature  and  to  What  it  Attaches. — 
Dower  is  the  provision  which  the  law  makes  for  a  widow 
out  of  the  lands  of  her  deceased  husband  for  the  sustenance 
of  herself  and  nurture  and  education  of  her  children,  and  con- 
sists of  that  portion  of  a  man's  lands  and  tenements  which, 
after  his  death,  his  widow  is  entitled  to  hold  during  her  nat- 
ural life.  It  is  an  inchoate  right  depending  upon  marriage, 
seizin  and  the  death  of  the  husband.^  Dower  and  tenancy  by 
curtesy  are  abolished  in  many  of  our  states,  and  a  certain  in- 
terest in  fee  is  given  instead  thereof. 

Marriage  is  an  essential  prerequisite — a  woman,  to  be  en- 
titled to  dower,  must  answer  the  description  of  a  lawful  wife. 
It  is  not  essential  that  her  marriage  should  be  celebrated  ac- 
cording to  the  provisions  of  the  statute,  as  all  statutory  for- 
malities are  regarded  as  directory  only,  but  if  the  marriage 
is  good  by  the  common  law  and  does  not  contravene  any  provi- 
sion of  the  statute,  it  will  be  valid  and  entitle  her  to  dower. 
Continuous  cohabitation  as  busljand  and  wife,  and  being  gen- 
erally recognized  as  such  by  friends  and  acquaintances  in  the 
community,  are  presumptive  evidence  of  marriage  for  the  pur- 
pose of  giving  tbc  right  of  dower.-  In  general,  the  marriage, 
or  coverture  must  continue   until   the  death  of  the  husband. 

1  Bryant  v.  McCune,  49  Mo.  54G. 

2  Dyer  v.  P.rannock,  00  Mo.  .".91.  27  Am.  Pvep.  3.")9  ;  C'argile  v.  Wood, 
03  Mo.  501;    Davis  v.  Stoufter,  1.32  .Mo.  Apji.  555,  112  S.  W.  282. 


§  420  widow's  doweb  4^1 

l)ut  if  the  wife  has  been  (hvorced  on  account  of  the  fault  or 
misconduct  of  the  husband  she  does  not  lose  her  dower  in 
land  owned  by  him  at  or  previous  to  the  dissolution  of  the 
marriage,  but  if  he  is  divorced  by  reason  of  her  fault  or  mis- 
conduct, or  if  she  abandon  him  and  live  in  adultery,  she  loses 
her  right  to  dower. ^ 

Upon  the  death  of  the  husband  (natural  and  not  civil  death 
is  here  referred  to)  the  inchoate  interest  which  she  had  dur- 
ing coverture  becomes  perfected,  and  her  right  to  demand  and 
enter  upon  the  enjoyment  of  that  interest  commences,  unless 
she  has  parted  with  or  otherwise  forfeited  the  same.  She  has 
the  right  of  quarantine  and  may  remain  in  the  mansion  house 
and  enjoy  the  messuages  or  plantation  thereto  belonging,  which 
was  occupied  by  the  husband  at  the  time  of  his  death,  until 
dower  be  assigned,  but  this  is  not  a  dower  right,  but  a  right 
given  by  the  statute  to  one  who  has  a  dower  right,  and  has 
no  application  to  premises  not  occupied  by  the  husband  at  his 
death.*  If  the  husband  is  in  possession  of  the  mansion  house 
at  the  time  of  his  death,  the  widow  is  entitled  to  her  right  of 
quarantine,  although  she  does  not  reside  with  him  ;  his  resi- 
dence determines  her  rights."^  And  it  is  no  laches  on  the  part 
of  the  heir  to  permit  the  widow  and  her  grantee  to  occupy 
the  mansion  house  of  the  ancestor  as  long  as  she  lives  without 
having  her  dower  assigned,  and  the  statute  of  limitation  be- 
gins to  run  against  the  heir  and  in  favor  of  one  claiming  the 
mansion  house  of  the  ancestor  by  grant  of  the  widow^  from 
the  time  of  her  death,  and  not  before.® 

As  to  the  husband's  curtesy  in  the  lands  of  the  wife,  there 
must  have  been  seizin  of  the  lands  by  the  wife  during  cover- 
ture. By  this  is  not  meant  that  actual  possession  of  the  land 
by  her  was  necessary,  if  at  any  time  during  coverture  she  pos- 
sessed a  fee  simple  title  wdiich  gave  her  the  right  to  posses- 
sion, it  is  sufficient.'  The  husband's  seizin  entitled  to  the  land 
must  have  been  to  his  own  use  and  not  in  trust  for  another. 
The  wife  has  no  dower  in  lands  held  by  her  husband  as  trustee. 

3  Rev.  St.  1909,  §  359 ;  Gould  v.  Crow,  57  Mo.  2tK) ;  McAlister  v. 
Novenser.  54  Mo.  251  :  Hunt  v.  Thompson.  61  Mo.  14s ;  Scales  v. 
Scales,  Co  Mo.  App.  2112  ;  White  v.  Inj,'raiu.  110  Mo.  474,  19  S.  W. 
827;    Weindel  v.   Weiiulel.   120  Mo.   040.  29   S.   W.   715. 

4  McClnng  v.  Turner,  74  Mo.  45. 

5  Smith  V.  Stephens.  104  Mo.  415.  04  S.  W.  2(;0. 

6  Brown  V.  Moore.  74  Mo.  0M:J  :  Meltttn  v.  Fitch.  125  Mo.  281,  28 
S.  W.  012;   Carey  v.  West,  i;i9  Mo.  14(5.  40  S.  W.  001. 

7  Reaume  v.  Chambers,  22  Mo.  ."JO;  ^lartin  v.  Trail.  1 12  Mo.  S5.  43 
S.  W.  055. 


432  widow's  doweb  §  4:20 

Dower  does  not  attach  to  lands  held  by  the  husband  as  guardi- 
an, executor  or  upon  any  kind  of  trust.  It  must  have  been 
a  beneficial  seizin  in  the  husband. 

Curtesy  is  the  interest  of  the  surviving  husband  in  the  lands 
of  his  deceased  wife,  where  there  was  issue  of  the  marriage 
born  alive  which  might  have  been  capable  of  inheritance.  The 
four  essential  things  necessary  to  constitute  an  estate  of  ten- 
ancy by  the  curtesy  are :  First,  marriage ;  second,  seizin  of 
wife;  third,  issue  born  alive;  fourth,  death  of  the  wife.  If 
seizin  occurs  at  any  time  within  the  marriage,  and  a  child  is 
born  and  dies  before  or  after  seizin,  the  husband  has  curtesy 
in  the  wife's  lands.  He  is  entitled  to  curtesy  in  land  in  which 
the  wife  has  a  separate  equitable  estate,  if  the  other  conditions 
to  create  the  curtesy  are  present.  Where  lands  have  been 
deeded  to  the  wife  for  her  sole  and  separate  use,  and  the  grant 
itself  shows  a  clear  intention  on  the  part  of  the  grantor  to  bar 
the  husband's  right  to  curtesy  therein,  he  will  not  be  entitled 
to  curtesy  in  such  lands  upon  her  death,  although  all  the  other 
necessary  requisites  are  present.^ 

§  421.  In  What  Estate  or  Property  Dower  Attaches. — 
At  common  law  the  right  of  dower  could  not  attach  upon  any 
estate  of  which  the  husband  had  not  been  seized  either  in 
deed  or  m  law,  at  some  period  during  the  coverture.  A  mere 
right  to  or  interest  in  land,  unless  accompanied  by  technical 
seizin,  w^as  deemed  insufficient  to  confer  a  title  of  dower.  It 
was  also  required  as  a  requisite  of  dower,  that  the  seizin  of 
the  husband  should  be  a  sole  seizin  of  the  freehold  and  inherit- 
ance, therefore,  the  right  of  dower  did  not  attach  to  estates 
held  in  joint  tenancy  or  for  a  term  of  years.  But  our  statute 
has  changed  the  rule  of  common  law  respecting  dower,  mak- 
ing, in  many  respects,  more  liberal  provision  for  the  widow. 
She  is  endowed  by  the  statute  with  one  third  part  of  all  the 
lands  whereof  her  husband,  or  any  other  person  to  his  use, 
wzs  seized  of  an  estate  of  inheritance,  at  any  time  during  the 
marriage,  to  which  she  has  not  relinquished  her  right  of  dower, 
in  the  manner  prescribed  by  law,  to  hold  and  enjoy  during 
her  natural  Hfe.®  She  is  entitled  to  dower  in  land  fraudulently 
conveyed  by  the  husband  to  his  heirs  to  defeat  her  claim  there- 
to.^**   But  she  has  no  dower  in  a  vested  remainder  which  her 

8  Donovan  v.  Griffith,  215  Mo.  HO,  114  S.  W.  621,  20  L.  R.  A.  (X. 
S.)  825,  128  Am.  St.  Rep.  458,  15  Ann.  Cas.  724. 

9  Rev.  St.  1909,  §  345 ;    Williams  v.  Courtney,  77  Mo.  587. 

10  Andrews  v.  Broughton,  84  Mo.  App.  040;  Newton  v.  Newton, 
102  Mo.  17.3,  01  S.  W.  881 ;  Natch  v.  Rollins,  1.58  Mo.  182.  59  S.  W. 
232. 


§  421  widow's  dowek  433 

husband  never  had  in  possession.*^  She  also  has  a  dower  in 
a  leasehold  estate,  if  the  term  be  for  twenty  years  or  more,  to 
I'C  granted  and  assigned  as  in  real  estate;  if  for  a  less  term 
tJK.n  twenty  years,  to  be  granted  and  assigned  as  personal 
property.'' 

The  term  here  referred  to  is  not  a  term  remaining  unex- 
pired at  tiie  death  of  the  husband  but  the  term  named  in  the 
lease. *^  And  if  the  husband  has  made  a  contract  for  lands, 
although  he  has  not  paid  for  them,  the  widow  is  entitled  to 
her  dower  to  the  extent  of  her  husband's  equitable  interest  in 
the  same.**  If  he  has  paid  a  part  of  the  purchase  money, 
it  is  c|uite  certain  that  the  widow  may  claim  pro  tanto,  or  if 
the  purchase  money  is  paid  after  his  death  out  of  the  assets 
of  the  estate,  she  is  entitled  to  dower  the  same  as  if  her  hus- 
bantl  had  been  seized  of  an  estate  of  inheritance.  Dower  at- 
taches to  an  equitable  interest  as  well  as  to  a  legal  interest  in 
the  lands  of  the  deceased  husband.  And  the  wife  is  entitled 
to  dower  although  there  may  have  been  no  actual  possession 
or  recovery  of  possession  by  the  husband  in  his  lifetime,  and 
although  the  lands  may  have  been  held  by  him  as  tenant  in 
common,  or  coparcener.* -"^ 

Partnership  realty  is  not  subject  to  dower,  if  the  firm  be  in- 
solvent, or  in  debt,  or  the  property  has  been  sold  to  pay  firm 
debts.***  The  wife  has  dower  in  the  equitable  estate  of  her 
husband  subject  to  a  vendor's  lien.*^  but  if  his  equity  was  sold 
in  his  lifetime  to  pay  the  purchase  money,  no  dower  attaches.** 
And  the  mere  transitory  seizin  of  the  husband,  as  where  he  is 
the  mere  conduit  or  medium  employed  to  pass  the  title  to  an- 
other, or  where  a  deed  is  made  to  him  and  he  gives  a  deed  of 
trust  or  mortgage  back  to  secure  purchase  money,  being  simul- 
taneous acts,  there  is  not  such  seizin  as  entitles  the  wife  to 

11  Von  Arb  v.  Thomas,  163  Mo.  .33,  63  S.  W.  94. 

1-'  Kev.  St.  1009.  §  .345. 

13  Orohard  v.  Wrifiht-Dalton-Bell- Anchor  Store  Co.,  225  :SIo.  414, 
125  S.  W.  4S6,  20  Ann.  Cas.  1072. 

i*Rev.  St.  1909,  §§  347,  348;  Casteel  v.  Potter.  176  Mo.  70,  75  S. 
W.  597. 

ir.  Rev.  St.  1900.  §  368;  Davis  v.  Evans,  102  Mo.  104.  14  S.  W. 
875;  Bartlett  v.  Tinsley,  175  Mo.  :U0.  75  S.  W.  143;  Van  Pelt  v. 
Parry.  218  Mo.  OSO.  US  S.  W.  425;  Null  v.  Howell.  Ill  Mo.  273,  20 
S.  W.  24 ;   Von  Arb  v.  Thomas.  163  Mo.  33.  63  S.  W.  94. 

18  Willet  V.  Brown,  65  Mo.  138,  27  Am.  Rep.  265;  Duhring  v. 
Duhrins.  20  Mo.  174. 

1-  Duke  V.  Brandt.  51  Mo.  221. 

isWorsham  v.  Callison,  49  Mo.  206. 
Kel.Mo.P.O.— 28 


434  widow's  doweb  §  422 

(lower,  as  against  the  holder  of  the  title  or  mortgage/''  But 
whenever  there  is  a  beneficial  seizin  in  the  husband,  no  matter 
how  short  the  time,  her  right  of  dower  attaches,  and  unless 
she  relinquishes  it,  or  forfeits  it  in  some  way  known  to  the 
law,  or  it  be  defeated  by  some  superior  equity,  it  becomes  ab- 
solute at  his  death. -°  So  claim  and  possession  under  contract 
of  purchase  gives  the  husband  such  an  interest  in  equity  as 
entitles  her  to  dower  subject  to  a  vendor's  lien,  if  any.-^  She 
is  not  entitled  to  dower  in  lands  fraudulently  conveyed  by  her 
husband  before  her  marriage,  though  the  conveyance  be  set 
aside  at  the  suit  of  creditors.- - 

§  422.  Widow's  Right  of  Election  in  Matter  of  Dower. 
— The  widow  is  not  confined  to  one-half  of  her  husband's  lands 
as  dower  in  all  cases,  but  under  some  circumstances  her  inter- 
ests are  enlarged  and  under  others  she  may  take  at  her  elec- 
tion rights  in  lieu  of  dower.  If  a  husband  or  wife  dies  leav- 
ing a  child  or  children  or  other  descendants,  the  widow  or 
widower  is  entitled  absolutely  to  a  share  in  the  personal  estate 
belonging  to  the  husband  or  v\^ife  at  the  time  of  his  or  her  death 
equal  to  the  share  of  a  child  of  such  deceased  husband  or  wife.^^ 
This  is  an  absolute  right  vested  under  the  circumstances  named 
in  the  widow  or  widower  and  where  other  property  has  been 
given  by  will  in  lieu  of  such  interest,  it  is  not  necessary  for 
renunciation  of  the  rights  under  the  will  to  be  formally  made, 
and  no  testamentary  disposition  will  be  permitted  to  defeat 
it.^*  The  right  is  not  given  in  lieu  of  dower,  and  may  be 
claimed  in  addition  to  the  personal  property  which  is  given  to 
the  surviving  widow  or  widower  absolutely  by  statute  free 
from  claims  of  creditors.^'*  It  has  been  held  that  even  ac- 
ceptances of  benefits  under  provisions  of  a  will  do  not  amount 

19  Fontaine  v.  Boatmen's  Savings  Institution.  57  Mo.  552;  May- 
burry  v.  Brien,  15  Pet.  21,  10  L.  Ed.  646 ;  Keed  v.  Morrison,  12  Serg. 
&  R.  (Pa.)  18;    1  Washburn  R.  Prop.  ITS. 

20  Grady  v.  McCorkle,  57  Mo.  172,  17  Am.  Rep.  676;  Fontaine  v. 
Boatmen's  Savings  Institution,  57  Mo.  552;    Co.  Litt.  32a. 

2  1  Duke  V.  Brandt,  51  Mo.  221;  Howell  v.  Jump.  140  Mo.  441.  41 
S.  W.  976 ;   Davis  v.  Green,  102  Mo.  170,  14  S.  W.  S76,  11  L.  R.  A.  90. 

22  Gross  V.  Lange,  70  Mo.  45. 

2  3  Rev.  St.  1909,  §  349. 

2  4  p:gger  V.  Egger,  225  Mo.  116,  123  S.  W.  928,  135  Am.  St.  Rep. 
506 ;   Lich  v.  Lich,  158  Mo.  App.  400,  1.38  S.  W.  558. 

2  5Egger  V.  Egger,  225  Mo.  IK!,  123  S.  W.  928,  135  Am.  St.  Rep. 
r,VAi;  Zook  V.  Welty,  156  Mo.  App.  703,  137  S.  W.  989;  Martin  v. 
.Tones,  155  Mo.  App.  490,  134  S.  W.  1097.  But  see  Griffith  v.  Canning, 
54  Mo.  282. 


§  422  widow's  dowee  435 

to  a  relinquishment  of  the  right  given  to  a  cliild's  sliare  in  the 
personal  estate,  where  the  acceptances  and  subsequent  renun- 
ciation do  not  cause  injury  or  rlamage  to  others  interested  in 
the  estate  and  so  work  an  estoppel/-'*  The  section  of  the  stat- 
utes which  gives  the  wife  right  to  elect  to  take  a  child's  part 
in  the  lands  of  her  deceased  husband  subject  to  the  payment 
of  her  husband's  debts  in  lieu  of  a  one-third  interest  to  hold 
during  her  natural  life  is  somewhat  different  in  its  phraseology 
and  application  than  that  which  gives  a  similar  right  as  to  per- 
sonal property.^^  The  right  so  given  to  a  child's  share  of  the 
real  property  of  the  deceased  husband  is  in  lieu  of  dower,  and 
the  widow  must  formally  elect  within  fifteen  months  after  the 
grant  of  letters  testamentary  or  of  administration  to  renounce 
her  natural  dower  right  or  the  provisions  of  a  will  in  lieu  of 
dower,  and  announce  her  desire  to  take  a  child's  part  of  the 
real  estate  subject  to  debts.-**  The  election  in  this  case  must 
be  made  by  declaration  in  writing,  acknowledged  before  some 
officer  authorized  to  take  the  acknowledgment  of  deeds,  and 
filed  for  record  in  the  office  of  the  recorder  of  the  county  in 
which  letters  were  granted  within  fifteen  months  after  grant 
of  same.  If  this  election  is  not  so  made,  the  widow  is  endowed 
of  one-third  of  the  lands  of  her  deceased  husband,  to  hold  and 
enjoy  during  her  natural  life,  or  takes  under  the  provisions  of 
will  granting  rights  in  .lieu  of  dower.  The  rights  above  re- 
ferred to  exist  only  where  a  child  or  children  or  other  descend- 
ants of  the  marriage  are  living  at  the  time  of  the  decease  of 
father  or  mother.  When  a  wife  dies  without  any  child  or 
other  descendants  in  being  capable  of  inheriting,  her  widower 
is  entitled  to  one-half  of  the  real  and  personal  estate  belong- 
ing to  the  wife  at  the  time  of  her  death,  subject  to  the  pay- 
ment of  the  wife's  debts. -^  If  a  husband  dies  without  a  child 
or  other  descendants  in  being  capable  of  inheriting,  his  widow 
is  entitled :  First,  to  all  the  real  and  personal  estate  which  came 
to  the  husband  in  right  of  the  marriage,  and  to  all  the  personal 
property  of  the  husband  which  came  to  his  possession  with 
the  written  assent  of  the  wife,  remaining  undisposed  of,  ab- 
solutely, not  subject  to  the  payment  of  the  husband's  debts; 
second,  to  one-half  of  the  real  and  personal  estate  belonging 
to  the  husband  at  the  time  of  his  death  absolutely,  subject  to 

26  Spratt  V.  Lawsen,  176  Mo.  175,  75  S.  W.  642 ;    Egger  v.  Eggor, 
225  Mo.  116,  12:5  S.  W.  !)2S,  135  Am.  St.  Rep-  566. 
2  7  Kev.  St.  1009,  §  :i'M. 
28  Rev.  St.  1000.  §  :;57.  28  Rev.  St.  VM)0.  §  .'550. 


436  widow's  dower  §  423 

the  payment  of  the  husband's  debts.'"'  If  the  husband  dies 
leaving  a  child  or  descendants,  but  not  by  his  last  marriage, 
the  widow  may  in  lieu  of  dower  elect  to  take  in  addition  to  her 
real  estate  the  personal  property  in  possession  of  her  husband 
that  came  to  him  in  right  of  the  wife  by  means  of  the  mar- 
riage or  by  her  consent  in  writing  subject  to  the  payment  of 
his  debts. ^^  Where  the  husband  dies  without  children,  or  does 
not  leave  a  child  or  descendants  of  his  last  marriage,  and  the 
widow  claims  the  rights  hereinbefore  enumerated  in  lieu  of 
dower,  she  must  make  the  election  which  the  law  requires 
within  twelve  months  after  the  grant  of  letters  testamentary 
or  of  administration  upon  the  husband's  estate.  It  has  been 
held  that  the  right  of  the  widow  to  elect  to  take,  where  the  hus- 
band died  without  any  child  or  other  descendants  capable  of 
inheriting,  one-half  of  the  real  and  personal  estate  belonging  to 
the  husband  at  the  time  of  his  death,  subject  to  payment  of 
debts,  is  a  dower  right  and  can  only  be  exercised  where  the 
widow  was  entitled  to  dower. ^-  This  decision  is  clearly  out 
of  harmony  with  later  decisions  of  the  supreme  court,  although 
it  has  never  been  expressly  overruled,  nor  has  it  been  cited  in 
later  cases  in  such  a  manner  as  to  give  full  expression  to  the 
meaning  and  intention  of  the  court.  The  liberal  construction 
given  to  the  sections  directly  preceding  the  one  in  hand,  over- 
ruling in  effect  the  dicta  in  the  opinion  above  referred  to  in- 
dicate that  the  rights  given  in  section  351,  Rev.  St.  1909,  are 
independent  of  the  husband's  seizin  of  lands  to  which  dower 
can  attach. ^3 

§  423.  Same — Election,  Notice  to  Widow, — The  widow, 
when  the  husband  dies  without  a  child  or  other  descendants 
capable  of  inheriting,  may  elect  whether  she  will  take  dower 
of  one-third  during  her  life,  or  such  provision  as  the  law 
makes  for  her  in  lieu  thereof  as  stated  in  the  next  preceding 
section. 

When  she  is  entitled  to  dower,  and  under  the  statute  may 
have  her  election,  as  above  pointed  out,  it  is  the  duty  of  the 
executor  or  administrator  immediately  after  letters  have  been 

3  0  Kev.  St.  1J309,  §  351. 

31  Rev.  St.  1909,  §  352;  Martin  v.  Jonos,  155  .^lo.  App.  490,  134  S. 
W.  1097. 

3  2  Von  Arb  v.  Thomas.  163  Mo.  33,  63  S.  W.  94. 

3  3  Sparks  v.  Dowell,  151  Mo.  App.  173,  131  S.  W.  761;  Martin  v. 
Jones,  155  Mo.  App.  490,  134  S.  W.  1097 ;  Zook  v.  Welty,  156  Mo. 
App.  703,  137  S.  W.  989;  LicL  v.  Licli,  158  Mo.  App.  400,  138  S.  W. 
558. 


§  424  widow's  dowee  437 

granted  on  the  estate,  to  cause  a  notice  to  be  served  on  the 
widow,  apprising  her  of  her  right,  and  requiring  her  to  file 
her  declaration  of  election  within  the  time,  and  according  to 
the  terms  of  tlie  statute.  If  he  fails  to  give  such  notice  he  is 
liable  on  his  bond  for  all  damages  sustained  by  any  person 
thereby.''* 

Such  notice  may  be  in  the  following  form : 

Notice  to  IVidozv  of  Rii^lit  of  Blection 

To  M.  K..  widow  of  II.  K.,  dweased: 

You  are  licroby  iiotilifd  that  in  lieu  of  dower  of  the  one-third  part 
of  all  lands  whereof  your  husband,  H.  R.,  died  seized,  to  hold  and 
eujoy  during  your  natural  life,  you  may  elect  to  take  all  the  real 
and  personal  estate  which  came  to  him  in  right  of  the  marriage  and 
all  the  personal  jtroperty  which  came  to  his  possession  with  the 
written  assent  of  the  wife  remaining  undisposed  of,  absolutely,  not 
subjei't  to  the  payment  of  the  husband's  debts ;  and  one-half  of  the 
real  and  personal  estate  belonging  to  your  husband  at  the  time  of 
his  death  absolutely,  subject  to  the  payment  of  the  husband's  debts, 
but  in  order  to  such  election,  you  are  re<iuired  to  make  your  declara- 
tion of  election  in  writing,  acknowledge  it  before  some  otticer  au- 
thorized to  take  acknowledgment  of  deeds,  and  file  the  same  in  the 

office  of  the  clerk  of  the court  of county  within  twelve 

months  from  the day  of ,  11>— . 

In  witness  whereof  I  have  hereunto  set  my  hand  this  day 

of ,  19 — .  J.  R.,  Administrator. 

The  notice  with  the  proof  of  service,  as  provided  by  law  for 
the  service  of  notices  (by  delivering  a  copy)  must  be  filed  in  the 
office  of  the  clerk  of  the  probate  court,  within  ten  days  after 
the  same  is  given. ^^ 

§  424.  Same — Within  What  Time— How  Made. — Where 
rights  are  asserted  under  Sections  351  or  352,  Rev.  St.  1909, 
the  election  by  the  widow  must  be  made  by  declaration,  in 
writing,  acknowledged  before  some  officer  authorized  to  take 
the  acknowledgment  of  deeds  and  filed  in  the  office  of  the 
clerk  of  the  court  in  which  the  letters  testamentary  or  of  ad- 
ministration shall  have  been  granted,  within  tivelve  months 
after  the  grant  of  the  same;  otherwise,  she  shall  be  endowed 
with  one-third  during  her  life.  If  the  widow  is  of  unsound 
mind  or  a  ininor.  her  lawful  guardian  may  make  the  election 
for  her.3« 

3  4  Rev.   St.   lUOn.  §  ."^54. 
3  5  Rev.  St.  liHID.  §  :}i34. 

3  6  Rev.  St.  19U9,  §  355;  Young  v.  Roardman.  07  Mo.  ISl,  10  S. 
W.  48. 


438  widow's  dower  §  424 

The  statute  requiring  the  executor  or  administrator  to  notify 
the  widow  of  her  right  to  elect  is  regarded  as  directory  only, 
and  unless  the  widow  files  her  declaration  of  election  within 
the  time  and  in  the  manner  prescribed,  she  will  lose  the  right 
of  election,  and  will  be  endowed  with  a  life  estate  only,  wheth- 
er she  be  notified  or  not.'*^  The  failure  to  notify  her  does  not 
extend  the  time  in  which  she  may  elect  beyond  the  period  fixed 
by  the  statute.^*  Nor  would  the  death  of  the  widow  extend 
the  time  to  her  personal  representatives.^"  An  election  to  take 
such  provision  as  the  law  has  made  for  her  in  lieu  of  dower, 
operates  as  a  bar  to  dower,  and  the  widow  can  take  no  interest 
in  any  property  conveyed  by  the  husband  in  his  lifetime  in  the 
conveyance  of  which  she  did  not  join,*''  The  right  of  the 
widow  to  elect  in  the  matter  of  dower  is  strictly  personal,  and 
it  cannot  be  exercised  by  any  one  succeeding  to  her  interests.*^ 
To  entitle  a  widow  to  dower  of  one-third  for  life  it  is  not  nec- 
essary that  she  should  elect  so  to  take,  for  she  will  be  endowed 
in  that  manner  unless  she  chooses  to  take  under  some  other 
or  different  provision  of  the  statute.*-  But  when  she  files  her 
election  within  the  proper  time,  it  fixes  her  rights  under  the 
law,  and  although  she  may  be  disappointed  or  defeated  in  her 
supposed  interests  by  the  payment  of  debts,  yet  she  must  abide 
by  the  result.*'  And  she  thereby  loses  all  the  incidents  of 
dower,  such  as  the  right  to  remain  in  the  mansion  house,  or 
to  have  a  share  of  the  rents.**  In  such  case  she  ceases  to  be 
a  doweress  and  takes  as  a  distributee,  when  she  takes  subject 
to  the  payment  of  debts,  but  not  when  she  takes  discharged  of 
the  debts,  and  must  await  the  final  settlement  and  adjustment 
of  the  estate.  Although  by  her  election  she  loses  the  incidents 
of  common-law  dower,  she  remains  entitled  to  the  widow's 
statutory  allowance  of  four  hundred  dollars.*^     This  matter 

"Price  V.  Woodford,  43  Mo.  247;  Ewing  v.  Ewing,  44  Mo.  23; 
Allon  V.  Harnett,  116  Mo.  278,  28  S.  W.  717;  Brown  v.  Tucker's 
Estate,  135  Mo.  App.  o98,  117  S.  W.  96. 

38  Price  V.  Woodford,  43  Mo.  247;    Ewing  v.  Ewing,  44  Mo.  23. 

3  9  P.ryant  v.  Christian,  58  Mo.  98. 

4<'  Hornsey  v.  Casey,  21  Mo.  545;    Hornsey  v.  Casey,  23  Mo.  371. 
41  Welch  V.  Anderson,  28  Mo.  293;    Castleuian  v.  Castleinan,  184 
Mo.  432,  83  S.  W.  757. 

4  2  Watson  V.  Watson,  28  Mo.  300. 

4  1  Matney  v.  Graham,  50  Mo.  559;  Wigley  v.  Beauchamp,  51  Mo. 
544. 

44Wigley  V.  Beaucliamp,  51  Mo.  544. 

45  Martin  v.  Jones,  155  Mo.  App.  490.  134  S.  W.  1097;  Sparing  v. 
D(.well,  151  Mo.  App.  173,  131  S.  W.  761;  Zoolc  v.  Welty,  156  Mo. 
App.  703,  137  S.  W.  989. 


§  425  widow's  dowp:r  439 

has  been  the  subject  of  some  variation  in  the  decisions  of  our 
courts,  the  hiter  cases,  i)articularly  those  decided  by  the  courts 
of  appeals,  have  hehl  une(iuiv()cally  that  the  statutory  allow- 
ances given  absolutely  to  the  widow  are  not  released  by  her 
election  to  take  in  lien  of  dower,  a  child's  share  in  the  estate 
subject  to  debts. ^"^ 

Declaration  of  Election  by  Widozv 

Know  all  men  by  these  presents,  that  I,  M.  U.   widow  of  FI.  R., 

late  of  county,   deceased,  do  elect  to  take  all  the  real  and 

personal  estate  which  came  to  said  H.  K..  deceased,  in  ritrht  of  our 
marriage,  and  all  personal  property  of  the  husband  which  came  to 
his  iMjssessiou  with  my  written  consent,  remaining  undisposed  of, 
absolutely,  not  subject  to  the  payment  of  my  said  husl)and's  debts; 
and  one-half  of  the  real  and  i>ersonal  estate  belonging  to  my  said 
husband  at  the  time  of  his  death,  absolutely,  subject  to  the  payment 
of  his  debts,  in  lieu  of  dower  of  the  one-third  part  of  all  lands 
whereof  my  said  husband,  or  any  other  person  to  his  use,  was  seized 
of  an  estate  of  inheritance  at  any  time  during  our  coverture,  to  hold 
and  enjoy  during  my  natural  life. 

In  witness  whereof  I   have  hereunto  set  my   hand  and  seal  this 

day  of ,  10—.  M.  R.  [Seal.l 

State  of  Missouri,      ) 

County  of .  ( 


On  this  day  of  ,   19—,  before  me,  R.   G.,  a  

within  and  for  said  county,  came  the  above  named  M.  R.,  to  me 
known  to  be  the  identical  person  who  signed  the  foregoing  instru- 
ment of  writing,  and  the  person  whom  she  represents  herself  to  be, 
and  acknowledged  the  execution  of  the  same  to  be  her  voluntary  act 
and  deed  for  the  piu'poses  therein  expressed. 

Given  under  my  liand,  etc.  R.  C., 

(Style  of  ofiice.) 

The  proceedinsfs  and  forms  of  notice  and  declaration  of 
election  here  given  apply  to  the  widow's  right  of  election  to 
take  under  R.  S.  §  351,  instead  of  dower  under  §  345.  The 
forms  and  proceedings  should,  of  course,  be  varied  to  meet  the 
statute  api)licable  to  the  facts  in  the  given  case. 

§  425.  Widow's  Right  of  Election  to  Take  a  Child's 
Share  in  Lieu  of  Dower. — As  stated  in  the  preceding  sec- 
tions, where  the  husband  dies  leaving  a  child  or  children,  or 
other  descendants,  the  widow,  if  she  has  a  child  or  children 
by  such  husband  living,  may,  in  lieu  of  dower  of  the  one-third 
part  of  all  lands  whereof  her  husband  died,  or  shall  die  seized 
of  an  estate  of  inheritance,  to  hold  and  enjoy  during  her  nat- 

<«  See  Gritfith  v.  Canning,  54  Mo.  2S2 ;  Martin  v,  Jones,  155  Mo. 
App.  400,  134  S.  W.  1007. 


440  widow's  dower  §  425 

ural  life,  elect  to  be  endowed  absolutely  in  a  share  in  such 
lands  equal  to  a  share  of  a  child  of  such  deceased  husband. 
But  she  will  take  under  this  provision  subject  to  the  payment 
of  the  husband's  debts. *^  The  election  in  this  case  must  be 
made  by  declaration  in  writing,  acknowledged  before  some 
officer  authorized  to  take  the  acknowledgment  of  deeds,  and 
filed  for  record  in  the  office  of  the  recorder  of  the  county  in 
which  letters  are  granted,  within  fifteen  months  after  the  grant 
of  the  same;  otherwise  she  will  be  endowed  as  beft)re  stated.*® 
In  this  case  no  notice  from  the  court  or  administrator  to  the 
widow  apprising  her  of  her  right  to  so  elect  is  required,  and, 
as  in  the  other  case,  she  must  file  her  election  within  the  time 
and  in  the  manner  prescribed,  or  she  will  lose  the  benefit  of 
this  provision  and  will  be  endowed  in  a  life  estate  in  her  hus- 
band's realty. 

Declaration  of  Election  by  JVidozu  to  Take  a  Child's  Part 

Know  all  men  by  these  presents  that,  I,  M.  R.,  widow  of  R.  R., 
late  of  the  county  of  Andrew,  and  state  of  Missouri,  deceased,  hav- 
ing by  my  said  husliand  a  child  (or  children)  livinji;.  do  in  lieu  of 
dower  of  the  one-third  part  of  all  lands  whereof  my  said  husband 
died  seized  of  an  estate  of  inheritance,  or  in  which  he  had  an  in- 
terest, to  hold  and  enjoy  during  my  natural  life,  elect  to  be  en- 
dowed absolutely  in  a  share  in  such  lands  equal  to  the  shai-e  of  a 
child  of  my  said  deceased  husl)and. 

Witness  mv  hand  and  seal  this day  of ,  19 — . 

M R [Seal.] 

[Add  acknowledgment.] 

§  426.  Same. — The  widow  electing  to  take  a  child's  part 
under  the  statute,  is  not  to  be  considered  as  a  doweress,  and 
is  not  entitled  to  her  quarantine — to  the  use  of  the  mansion 
house,  etc.,  until  her  share  of  the  estate  is  properly  assigned 
to  her.  The  setting  off  a  child's  share  in  partition  to  the  widow 
is  not  an  assignment  of  dower,  but  a  division  of  the  property, 
giving  to  her  the  fee  in  the  portion  thus  assigned  to  her.  Yet 
her  right  of  election  depends  upon  whether  she  has  the  right 
of  dower,  and  she  takes  such  interest  as  dower  and  not  by 
descent.*'*  When  a  child's  part  of  the  real  estate  is  taken  the 
widow  becomes  seized  and  has  the  same  estate  or  interest  in 

4  7  Rev.  St.  1909,  §  3.5G;  Crecelius  v.  Horst,  89  Mo.  356,  14  S.  W. 
510;  Payne  v.  Payne,  119  Mo.  174,  24  S.  W.  781;  Keeney  v.  McVoy, 
206  Mo.  42,  103  S.  W.  946. 

4  8  Rev.  St.  1909,  §  357;  Caslleman  v.  Castleman,  184  Mo.  432,  83 
S.  W.  757. 

49  Von  Arb  v.  Thomas,  163  Mo.  33,  63  S.  W.  94. 


§  428  widow's  dower  441 

it  that  a  child  has,  and  the  property  is  liable  for  her  debts.'" 
This  election  only  applies  to  the  realty.  She  will  be  entitled 
to  her  allowances  as  widow  out  of  the  personal  estate,  and 
may  take  a  child's  part  of  the  real  estate  subject  to  the  pay- 
ment of  debts,  or  have  dower  discharj^^ed  of  debts. 

§  427.  How  Dower  May  Be  Avoided  or  Released. — No 
act,  deed  or  conveyance  by  the  husband  without  the  assent  of 
the  wife,  and  no  judgment  or  decree  against  him,  and  no  lach- 
es, default,  covin  or  crime  of  the  husband,  can  prejudice  the 
right  and  interest  of  the  wife  in  his  lands. "^  If  the  wife  re- 
linquish her  dower  right  by  joining  her  husband  in  convey- 
ing his  real  estate,  or  otherwise  incumbering  the  same,  her  act, 
of  course,  cuts  off  her  right  to  dower  in  the  premises ;  "-  but  if 
the  husband  convey  alone  without  the  concurrent  action  of  the 
wife,  her  right  to  dower  remains,  and  will  be  governed  by  the 
law  in  force  at  the  time  of  the  conveyance.'-'  There  are  many 
ways  by  which  the  right  of  dower  may  be  superseded  or  avoid- 
ed by  the  act  or  agreement  of  the  wife,  as,  if  the  husband  de- 
vise real  estate  to  her  by  his  will,  it  will  stand  in  lieu  of  dower 
in  his  lands,  unless  he  otherwise  declare  in  his  will,  or  unless 
she,  by  writing,  duly  executed  and  acknowledged  and  filed  in 
the  office  where  the  will  is  proven,  within  twelve  months  after 
the  proof  of  the  will,  refuse  to  accept  the  provisions  made  for 
her  by  said  will."'*  She  mav  be  precluded  from  claiming  dow- 
er in  the  husband's  lands  by  the  acceptance  of  other  lands  or 
by  agreement,  when  it  is  clearly  the  intention  of  the  parties 
that  such  provision  should  be  in  lieu  of  dower. ^' 

§  428.  Same — By  Jointure. — So,  if  provision  be  made  for 
the  support  of  the  wife  by  way  of  jointure  by  her  contract,  or 
if  she  agree  to  accept  the  same,  such  jointure  will  bar  her  right 
of  dower.''*"'  But  a  settlement,  or  contract  by  way  of  jointure, 
whether  ante-nuptial  or  jiost-nuptial,  whether  made  before  or 

5  0  Wigley  v.  Beauchninp,  51  Mo.  544;  Matney  v.  Graham.  50  Mo. 
559. 

51  Hev.  St.  190n.  §  35S;    Williams  v.  Courtney,  77  Mo.  587. 

52  Hoyt  V.  Oliver.  50  Mo.  LSS;  Kidditk  v.  Walsh,  15  Mo.  519; 
Markwell  v.  Markwell,  157  Mo.  :V2G,  57  S.  W.  1078. 

5  3  Thomas  v.  Hesse,  .34  Mo.  l.S,  84  Am.  Dec.  66. 
5  4  Kev.  St.  1009.  §§  360.  861 ;    ante.  S  120. 

55  Bealey  v.  Blake,  1.5.3  Mo.  657.  55  S.  W.  2S8 ;  Eicrer  v.  Etr^er, 
225  Mo.  116.  128  S.  W.  928,   1.35  Am.  St.  Rep.  566. 

56  Rev.  St.  1909,  §  .362;  Moran  v.  Stewart,  178  Mo.  207.  73  S.  W. 
177:  Garhut  v.  Bowlinjr.  81  Mo.  214:  Carr  v.  I.aekland.  112  Mo.  442, 
20  S.  W.  624;    Ilalferty  v.  Scearce,  1.35  Mo.  428.  37  S.  W.  113. 


44:2  widow's  dower  §  429 

after  marriage,  to  be  a  bar  to  dower,  must  be  expressed  on  its 
face  to  be  in  discharge  of  dower.^^  If  the  deed  of  jointure  be 
made  before  or  after  marriage,  and  the  wife  be  a  minor,  she 
may  renounce  the  jointure  and  have  dower,  and  in  all  cases 
when  the  jointure  fails  or  she  loses  the  estate  by  eviction  or 
she  cannot  recover  it,  she  is  entitled  to  dower,  and  if  it  fails 
in  part  the  deficiency  must  be  made  up  from  the  husband's  es- 
tate.^^  If  the  deed,  assurance  or  contract  for  jointure  in  lieu 
of  dower,  through  any  default  fails  to  be  a  legal  bar  to  dower, 
and  the  widow  demands  her  dower,  the  estate  or  interest  so 
conveyed  to  her  will  cease  and  determine. ^^ 

§  429.  Same — By  Divorce  or  Adultery. — If  she  be  di- 
vorced for  the  fault  or  misconduct  of  the  husband  she  does  not 
lose  her  dower  as  to  lands  owned  by  him  previous  thereto,  but 
she  does  not  succeed  to  it  until  his  death ;  '"'^  but  if  the  hus- 
band be  divorced  for  her  fault,  whether  in  this  or  another 
state, ®^  or  if  she  voluntarily  leave  her  husband  and  go  away 
with  an  adulterer,  or  if  after  being  ravished  consent  to  the 
ravisher,  she  is  forever  barred  of  dower  or  jointure,  unless  the 
husband  become  reconciled  and  suffer  her  to  dwell  with  him.^- 

§  430.  Same — By  Estoppel. — If  at  the  sale  of  the  prem- 
ises it  be  publicly  declared  by  her  authority  that  she  does  not 
and  will  not  claim  dower,  or  if  she  stands  by  and  hears  such 
declaration  and  does  not  object,  and  thereby  induces  another 
to  buy  the  land  at  its  full  value,  she  is  estopped  from  after- 
ward claiming  dower. ^^  But  the  acceptance  of  dower  does  not 
preclude  her  from  claiming  a  homestead  in  the  same  prem- 
ises ;  ®*  and  being  a  party  to  a  suit  in  partition  does  not  pre- 
clude her  from  claiming  dower  afterwards.^' 

5  7  Perry  v.  Perryman.  19  Mo.  469;  Logan  v.  Phillipps,  18  Mo.  22; 
Dudley  V.  Davenport,  85  Mo.  4G2 ;  King  v.  King,  184  Mo.  99,  82  S. 
W.  101. 

5s  Rev.  St.  1909,  §  .",0.3. 

8  9  Rev.  St.  1909,  §  304. 

60  Hunt  V.  Thompson,  61  Mo.  148. 

81  Gould  V.  Crow,  ryl  Mo.  200;    Rev.  St.  1909,  §  ?,r,0. 

62  Rev.  St.  1909,  §  :iV>~j;  Iloyt  v.  Davis,  21  Mo.  App.  2.35;  MoAlister 
V.  Novenger.  .54  Mo.  251;  Loavy'v.  Cook.  171  Mo.  292,  71  S.  W.  182; 
Wilson  V.  Craig,  175  Mo.  .362,  75  S.  W.  419;  Payne  v.  Dotson,  81 
Mo.  14.5,  51  Am.  Rep.  225. 

6-?  Hart  V.  Giles,  67  Mo.  175;  Sweauey  v.  Mallory,  62  Mo.  485: 
Foley  v.  P>ouhvare,  86  Mo.  App.  674. 

0  4  Gragg  v.  Gragg,  65  Mo.  .343. 

«5  Crenshaw  v.  Creek,  52  Mo.  98. 


§  432  widow's  dower  443 

§  431.  Proceedings  for  the  Recovery  or  Assignment  of 
dower,  and  for  damaj^cs  for  withholding^  the  same  from  the 
widow,  are  matters  of  practice  in  the  circuit  court,  with  which 
this  work  has  nothing  to  do.  We  may  remark,  however,  in 
the  conclusion  of  this  chapter,  that,  the  dower  right  being  in- 
choate, it  may,  before  the  husband's  death,  be  enlarged,  abridg- 
ed, or  entirely  taken  away  by  the  law-making  power.  There 
must,  however,  be  no  interference  with  vested  rights. 

Formerly  it  was  held  that  a  doweress,  until  her  dower  was 
set  off,  had  no  property  in  the  land,  which  was  the  subject  of 
grant  or  assignment,  but  she  might  relin(iuish  her  dower  in- 
terest to  the  person  holding  the  next  estate.  But  since  the 
statute  of  1889  where  her  dower  has  not  been  assigned,  she  has 
such  possessory  right  as  may  be  assigned,  and  when  assigned 
carries  with  it  all  the  incidents  belonging  to  it  prior  to  its 
transfer."®  The  proceeds  of  sale  of  the  dower  interest,  after 
the  husband's  death,  is  the  absolute  property  of  the  widow. "^ 
The  widow's  administrator  may  recover  the  valtie  of  her  dow- 
er in  lands  conveyed  by  the  husband  to  his  heirs,  which  will 
be  estimated  at  its  value  at  the  time  of  the  contract.®*  If  the 
property  is  not  susceptil)le  of  division  and  dower  cannot  be 
assigned,  she  would  be  entitled  to  one-third  of  the  annual  prod- 
uct, and  the  person  managing  the  fee  must  use  reasonable 
means  to  make  it  productive,  but  he  would  not  be  required  to 
make  improvements  other  than  tenantable  repairs.®®  And  un- 
til dower  be  assigned,  the  widow  may  remain  in  and  enjoy 
the  mansion  house  of  her  husband  and  the  messuages  or  planta- 
tion thereto  belonging  without  being  liable  to  pay  rent  for  the 
same."" 

§  432.  Dower  in  Personalty. — If  the  husband  die  leaving 
a  child  or  children  or  other  descendants,  the  widow  is  entitled 

66  Rev.  St.  1909,  §  346;  Farris  v.  Coleman,  10.3  Mo.  352,  15  S.  W. 
767;  Youns  v.  Thrasher.  115  Mo.  222.  21  S.  W.  1104;  Rohrer  v. 
Oder,  124  Mo.  24,  27  S.  W.  606 ;  Carey  v.  West,  139  Mo.  146.  40  S. 
W.  661  ;  I'hillips  v.  Prosson,  172  Mo.  24,  72  S.  W.  501 ;  Orchard  v. 
Wrisht-Dalton-P.oll-Anchor  Store  Co.,  225  Mo.  414,  125  S.  W.  4S6, 
20  Ann.  Cas.  1072. 

6  7  State,  to  T'so  of  Plcknoy.  v.  CnlI)ertson.  50  .Mo.  341. 

6  8  Andrews  v.   Rrou;,'hton.  84  Mo.  App.  640. 

60  Carlin  v.  MuUery,  S:'.  Mo.  App.  30. 

70  Rev.  St.  1909,  §  366 ;  Stokes  v.  McAllister,  2  Mo.  163 ;  .Tones  v. 
Manly,  5S  Mo.  559 ;  Holmes  v.  Krinff.  93  Mo.  4.52.  6  S.  W.  .347 :  Phil- 
lips v.  Presson,  172  Mo.  24,  72  S.  W.  501;  Smith  v.  Stephens,  164 
Mo.  415,  64  S.  W.  260. 


444  widow's  dower  §  433 

absolutely  to  a  share  in  the  personal  estate  belonging  to  him 
at  the  time  of  his  death,  equal  to  the  share  of  a  child  of  the 
deceased.'^  ^  This  right  extends  only  to  such  personal  prop- 
erty as  the  husband  owned  at  the  time  of  his  death/-  not  in- 
cluding advancements — advancements  not  to  be  considered.'^ ^ 
And  she  is  entitled  to  the  allowance  of  four  hundred  dollars 
under  the  administration  act,  without  regard  to  debts. ^* 

§  433.  Widower  to  Inherit  From  Wife,  When, — If  a  wife 
die  without  any  child  or  other  descendants  in  being  capable  of 
inheriting,  her  widower  shall  be  entitled  to  one-half  of  the  real 
and  personal  estate  belonging  to  her  at  the  time  of  her  death 
absolutely,  subject  to  the  payment  of  the  wife's  debts.'' ^  And 
he  is  entitled  to  curtesy  in  the,  lands  of  the  wife  in  which  she 
has  a  separate  equitable  estate  as  well  as  in  lands  of  which  she 
died  seized  of  a  legal  estate  provided  he  has  a  child  born  alive 
by  her,'® 

71  Rev.  St  1909,  §  349. 

7  2  McLfuighliu  V.  McLaughlin's  Aclm'r.  10  Mo.  242, 

7  3  McReynold's  Ex'r  v.  Gentry,  14  Mo.  495. 

7*  Bryant  v.  McCune,  49  Mo.  54G ;  Ciuumings  v.  Cummingi?,  51 
Mo.  261 ;    ante,  §§  212-215. 

75  Rev.  St.  1909.  §  .350;  O'Brien  v.  Ash.  169  Mo.  283,  69  S.  W.  8; 
Sinu-lock  V.  Burnett,  183  Mo.  524,  81  S.  W.  1221;  Richter  v,  Bohn- 
sack,  144  Mo.  516,  46  S.  W.  748;  Perry  v.  Strawbridge,  209  Mo.  621, 
108  S.  W.  641,  16  L.  R.  A.  (N.  S.)  244,  123  Am.  St.  Rep.  510,  14  Ann. 
Cas.  92;  Jamison  v,  Zausch,  227  Mo.  400,  126  S.  W.  1023,  21  Ann. 
Cas.   1132. 

7  6  Ante,  §  407. 


§  434  HOMESTEAD  445 

CHAPTER  XXXIV 
OF  ITOMESTKAI)  AM)  ASSKJNMKNT  TIIEKEOF 

§  4.">4.  Nature  and  extent  of  liuniestead. 

43').  ECfect  of  wife's  claim  thereto. 

436.  Housekeeper  or  liead  of  a   family. 

437.  Estates  to  whidi  homestead  attaches. 

438.  Same — As  between  debtor  and  creditor. 

439.  Homestead  of  widow  to  vest  in  minor  children. 

440.  Changing'  homestead. 

441.  Rights  of  widow  and  children  to  homestead. 

442.  Same — Only  a  life  interest. 

443.  Abandonment  of  liomestead. 

444.  Homestead  and  dower  set  off. 

§  434.  Nature  and  Extent  of  Homestead. — The  term 
^'homestead"  has  been  defined  as  that  tract  of  land  which, 
being  within  the  statutory  limitations  as  to  quantity  and 
value,  is  occupied  and  claimed  as  a  homestead.^  The  right 
of  homestead  is  purely  statutory,  but  is  a  privilege  or  es- 
tate favored  by  the  law.  Homestead  laws  are  not  held  to 
be  in  derogation  of  the  common  law,  and  hence  should  not 
be  strictly  construed.-  In  Missouri  the  statute  provides 
that  the  homestead  of  every  housekeeper  or  head  of  a  fami- 
ly, consisting  of  a  dwelling  house  and  appurtenances,  and 
the  land  used  in  connection  therewith,  not  exceeding  the 
amount  and  value  therein  limited,  which  is  or  shall  be  used 
by  such  housekeeper  or  head  of  a  family  as  such  homestead, 
shall,  together  with  the  rents,  issues  and  products  thereof, 
be  exempt  from  attachment  and  execution,  except  as  herein 
provided.  Such  homestead,  in  the  country,  shall  not  in- 
clude more  than  one  hundred  and  sixty  acres  of  land,  or  ex- 
ceed the  total  value  of  fifteen  hundred  dollars ;  and  in  cities 
having  a  population  of  forty  thousand,  or  more,  such  home- 
stead shall  not  include  tnore  than  eighteen  square  nnls  of 
ground,  or  exceed  the  total  value  of  three  thousand  dollars; 
and  in  cities  having  a  population  of  ten  thousand  and  less 
than  forty  thousand,  such  homestead  shall  not  include  more 
than  thirty  square  rods  of  ground,  or  exceed  the  total  value 

1  White  V.  SiH>ncer.  217  Mo.  -JIL*.  117  S.  W.  20.  120  Am.  St.  Kep. 
547.  l(i  Ann.  Cas.  .V.)S. 

2  Kennedy's  Adm'r  v.  Duncan,  ir,7  Mo.  App.  212.  137  S.  W.  209; 
Brcwington  v.  Brewington.  211  Mo.  48.  100  S.  \Y.  72:5. 


446  HOMESTEAD  §  435 

of  fifteen  hundred  dollars;  and  in  cities  or  other  incorpo- 
rated towns  or  villages  having  a  less  population  than  ten 
thousand,  such  homestead  shall  not  include  more  than  five 
acres  of  ground,  or  exceed  the  total  value  of  fifteen  hundred 
dollars.'^ 

§  435.  Effect  of  Wife's  Claim  Thereto.— The  husband 
cannot  sell,  mortgage  or  alienate  the  homestead  in  any 
manner  whatever,  and  every  such  sale,  mortgage  or  aliena- 
tion w'ould  be  null  and  void,  unless  the  wife  joins  him  in 
the  conveyance  or  instrument  conveying  or  affecting  the 
same  or  any  part  thereof.  This  statute,  depriving  the  hus- 
band of  the  power  to  sell  or  incumber  the  homestead  unless 
the  wife  joins  in  the  conveyance,  by  implication  gives  her 
the  right  to  protect  it  from  his  creditors  in  case  he  aban- 
dons her  or  refuses  to  assert  the  homestead  right. 

§  436.  Housekeeper,  or  Head  of  Family. — "Family"  is 
understood  to  mean  a  collection  of  two  or  more  persons 
who  live  under  the  same  roof,  and  under  one  head  or  man- 
ager. It  is  not  material  that  the  family  should  be  numer- 
ous ;  it  may  consist  of  the  master,  or  head,  and  one  person 
besides,  such  as  wife,  child,  ward,  brother,  sister,  mother, 
or  any  person,  indeed,  dependent  upon  him  for  protection 
or  support.^  The  man  or  woman  who  controls,  supervises 
and  manages  the  aff'airs  about  the  house  is  the  head  of  the 
family,  and  he  or  she  need  not  be  a  husband,  or  father,  or 
mother,  of  any  member  of  the  family.  Thus,  a  young  man 
living  in  the  family  of  his  deceased  father  and  having  the 
care  and  direction  of  it,  or  a  brother  who  lives  with  a  wid- 
owed sister  and  her  children,  having  the  general  manage- 
ment and  oversight  of  the  family  affairs,  or  a  widow  wo- 
man who  keeps  any  of  her  family  with  her,  is  a  head  of  a 
family.^  And  it  is  not  indispensable  that  the  person  should 
at  the  moment  occupy  a  house  with  his  family;  he  may  be 
in  transit  from  one  point  to  another  in  the  state,  or  he  may 

3  Rev.  St.  inoo,  §  6704. 

4  P.rowii  V.  Brown's  Adni'r,  GS  Mo.  3SS ;  Homestead  Cases,  31  Tex. 
078;  Kitchell  v.  Hurgwin,  21  111.  40;  Whalen  v.  Cadman,  11  Iowa. 
226;  Comiaughton  v.  Sands,  32  Wis.  3S7 ;  liidenour-Baker  Grocery 
Co.  V.  Monroe,  142  Mo.  165.  43  S.  W.  633;  Broyles  v.  Cox,  153  Mo. 
242,  54  S.  W.  488,  77  Am.  St.  Rep.  714 ;  Whitehead  v.  Tapp,  69  Mo. 
415. 

fi  Wade  V.  Jones,  20  Mo.  75,  61  Am.  Dec.  584 ;  Broyles  v.  Cox,  153 
Mo.  242,  .54  S.  W.  4S8,  77  Am.  St.  Rep.  714 ;  Clark  v.  Thias,  173  Mo. 
628,  73  S.  W.  616. 


§  437  HOMESTEAD  447 

be  boarding  or  living  with  his  family  in  the  house  of  anoth- 
er, or  the  members  of  his  family  may  be  temporarily  sepa- 
rated, and  in  any  such  case  he  would  be  regarded  as  the 
head  of  the  family  and  entitled  to  the  benefit  of  the  law  as 
such.«  It  is  held  that  while  a  marriage  de  jure  exists,  the 
husband  is  the  head  of  a  family,  although  composed  of  his 
wife  only,  who  has  left  him ;  and  the  wife,  though  living 
apart  at  the  time  of  his  death,  is,  where  there  are  no  minor 
children,  entitled  to  homestead.^  As  between  husband  and 
wife  there  can  be  but  one  homestead  right  which  can  be  as- 
serted in  his  name.^  It  seems  that  the  relation  and  associa- 
tion of  master  and  servant,  or  emi)loyer  and  employe,  does 
not  constitute  a  family  of  which  the  master  or  employer  is 
head.® 

§  437.  Estates  to  Which  Homestead  Attaches. — A 
homestead  is  the  place  where  the  home  is — the  habitation 
or  residence  of  the  owner — the  dwelling  house  and  appur- 
tenances and  the  land  used  in  connection  therewith.  The 
homestead  will,  in  general,  be  confnied  to  a  single  lot  or 
tract  or  adjoining  lots,'"  on  which  the  family  resides,  yet 
it  may,  under  some  circumstances,  embrace  detached  par- 
cels of  land  when  used  by  the  owner  in  connection  with  his 
residence  or  home  place  and  as  a  part  thereof,  in  support- 
ing his  family,  such  as  a  tract  used  to  supply  timber  and 
wood,''  or  meadow  land  from  which  grass  and  hay  are  ob- 
tained for  the  use  and  support  of  the  family.'-  The  term 
appurtenances  used  in  the  statute  will  include  a  man's 
shop,  store,  stable,  mill  or  a  hotel  property  situated  upon 
the  grounds  and  used  by  the  owner  in  making  his  living, 
not  exceeding  of  course  the  total  value  specified.'^     But  a 

«  Brown  v.  Brown's  Adm'r,  68  Mo.  388 ;  Glailuey  v.  Berkley.  75 
Mo.  App.  08;  Leake  v.  Kins,  85  Mo.  413;  Whitehead  v.  Tapp.  m  Mo. 
415 ;  Murdock  v.  Dalby,  1.3  Mo.  App.  41 ;  Kendall  v.  Power.s,  96  Mo. 
142,  8  S.  W.  793,  9  Am.  St.  Kep.  326 ;  Kidenour-Baker  Grocery  Co. 
V.  Monroe.  142  Mo.  165,  43  S.  W.  <J33. 

7  Mark  v.  State  ex  rel.  Bowlers,  15  Ind.  98;  Woodward  v.  Mur- 
ray. IS  Johns.  (N.  Y.)  400 ;    Brown  v.  Brown's  Adm'r,  68  Mo.  388. 

X  Gladney  v.  Berkley,  75  Mo.  App.  98. 

9  Thompson  on  Homestead,  §  47. 

loKandal  v.  Elder,  12  Kan.  261. 

11  Perkins  v.  Quigley,  62  Mo.  498;  Grimes  v.  Portnian.  90  Mo.  229, 
12  S.  W.  792;  Meyers  Bros.  Druj:  Co.  v.  Bybee.  179  Mo.  354,  78  S. 
W.  570;    Adams  v.  Adams.  18:'.  .Mo.  3;X!,  82  S.  W.  66. 

12  Buxton  V.  Dearborn.  46  N.  H.  43. 

13  Thompson  on  Homestead.  §§  107,  108. 


448  HOMESTEAD  §  437 

farmer's  homestead  would  not  include  a  sawmill  or  a  grist 
mill  or  a  carding  and  fulling  mill,  or  the  like,  which  must 
be  operated  as  a  separate  business  from  farming  and  has  no 
necessary  connection  therewith.^* 

It  is  indispensable  that  the  premises  should  be  used  as  a 
homestead,  i.  e.  visible  occupancy  of  the  premises  as  a 
home,  and  as  against  creditors  under  a  recorded  deed,  fixes 
its  character  as  a  homestead,  though  it  seems  that  prepara- 
tion to  use  coupled  with  a  bona  fide  intention  to  use  it  has 
been  allowed  to  take  the  place  of  actual  use.  But  tempora- 
ry abandonment  or  removal,  with  the  intention  to  return, 
or  the  death  of  the  wife  or  removal  of  the  children  will  not 
defeat  the  right  of  homestead. ^^ 

An  entry  on  government  land  in  Colorado  has  been  held 
not  to  constitute  an  abandonment  of  the  entryman's  home- 
stead in  this  state,  in  the  absence  of  some  overt  act,  such 
as  moving  from  the  homestead  with  no  intention  of  return- 
ing.^® 

§  438.  As  Between  Debtor  and  Creditor. — A  parol 
promise  by  the  debtor  not  to  claim  the  homestead,  or  the 
waiver  of  the  homestead  and  exemption  laws,  as  is  some- 
times done,  is  against  public  policy  and  is  not  binding  on 
the  debtor.^''  The  homestead  law  cannot  be  permitted  to 
impair  the  obligation  of  contracts,  therefore  the  right  of 
exemption  cannot  be  claimed  as  against  debts  existing  at 
the  time  the  homestead  law  was  passed.^®  Nor  as  to  caus- 
es of  action  existing  at  the  time  of  acquiring  the  homestead, 
and  except  as  to  estates  existing  at  the  time  the  law  was 
passed,  the  date  of  the  filing  of  the  deed  of  the  homestead 
for  record,^**  when  the  party  holds  title  under  a  deed,  but 
when  he  holds  title  by  descent  or  devise  from  the  time  he 
becomes  invested  with  the  title  thereto,  and  in  the  case  of 
existing  estates  such  homestead  shall  not  be  subject  to  at- 

14  1(1.,  §  106;  Moiuiquand  v.  Hart.  22  Kan.  594,  31  Am.  Rep.  200; 
Ashton  V.  Inf,'le,  20  Kaii.  (i70,  27  Am.  liep.  197. 

1 5  P.eckmaim  v.  Meyer,  75  Mo.  33,3 ;  Campbell  v.  Coonradt,  22 
Kan.  705 ;  New  Madrid  Banking  Co.  v.  Brown.  165  Mo.  32,  65  S.  W, 
297 ;    Bealey  v.  Blake,  l.").'}  Mo.  657,  55  S.  W.  28S. 

18  Kimberlin  v.  Gordon,  139  Mo.  App.  464,  122  S.  W.  1144. 
i7Topley  V.  Ogle,  1(52  Mo.  190,  62  S.  W.  431;    Johnston  v.  Griest, 
85   Ind.  50.3. 

18  Buck  V.  Ashbrook,  .59  Mo.  200;    Stivers  v.  Home,  62  Mo.  473. 

1 9  Rev.  St.  1909,  §  6711 ;  Loring  v.  Groomer,  142  Mo.  1,  43  S.  W. 
647. 


§  439  HOMESTEAD  449 

tachment  or  execution  for  any  liability  hereafter  created. 
Where  homestead  rights  are  shown  to  have  existed,  that 
status  is  presumed  to  continue  until  the  contrary  appears. 
The  burden  rests  upon  the  one  attacking  the  right  of  home- 
stead to  show  it  ceased  to  exist  and  until  this  burden  is  suc- 
cessfully carried,  those  claiming  the  privilege  or  estate  of 
homestead  cannot  be  held  to  have  fraudulently  dealt  with 
the  property.-" 

It  has  been  thought  that  a  literal  construction  of  this 
statute  would  confine  the  right  of  homestead  to  those  who 
hold  title  by  a  recorded  deed,^^  or  acquired  it  in  the  man- 
ner specified.  But  as  the  object  of  the  law  is  to  secure  a 
homestead  to  the  debtor  and  his  family,  and  as  such  laws 
are  liberally  construed  to  that  end,  it  is  thought  that  §  6704 
gives  a  homestead  to  every  housekeeper  or  head  of  a  family, 
consisting  of  a  dwelling  house,  etc.,  without  regard  to  the 
quantity  of  estate,  or  evidence  of  title  or  right  by  which 
he  holds  it,  i.  e.,  whether  he  has  an  estate  for  life  or  in  fee, 
or  whether  an  equitable  or  legal  title,  acquired  by  adverse 
possession  or  by  descent  cast,  or  by  will,  or  by  deed  of  pur- 
chase, and  §  6711  being  an  exception  to  this  general  rule, 
and  for  the  mere  purpose  of  fixing  a  definite  period  when 
the  homestead  right  should  be  deemed  to  have  accrued, 
should  be  strictly  construed  and  confined  in  its  application 
to  cases  where  the  title  is  acquired  by  a  deed  which  is  capa- 
ble of  being  filed  and  recorded,  or  by  descent  or  devise. 
But  when  the  title  is  held  by  deed,  the  homestead  will  not 
be  exempt  if  the  cause  of  action  existed  before  the  deed  was 
filed  for  record ;  ^^  otherwise  if  the  deed  be  recorded  before 
cause  of  action  accrued. ^^ 

§  439.     Homestead  of  Widow  to  Vest  in  Minor  Children. 

— Prior  to  1907  the  homestead  of  the  widow,  not  acquired 
from  the  husband,  terminated  at  her  death  and  was  liable 

2  0  Seilert  v.  McAnally,  223  Mo.  505,  122  S.  W.  1064,  135  Am.  St. 
Rep.  522. 

21  Thompson  on  Homestead,  §  300. 

22  Shindler  v.  Givens,  03  Mo.  394;  State  ex  rel.  Meinzer  v.  Dlvel- 
ing,  CG  Mo.  375:  Beckmann  v.  Meyer,  75  Mo.  333;  State  ex  rel. 
Berry  v.  McGrath,  04  Mo.  139;  Farra  v.  Quigly,  57  Mo.  2S4 ;  Ten- 
neut  V.  Pruitt,  04  Mo.  145,  7  S.  W.  23. 

23Bartels  v.   KInnenger,    144   Mo.   370.  46  S.   W.   163;    Loring  v. 
Groonier.  142  Mo.  1,  43  S.  W.  647;    Payne  v.  Fraley,  165  Mo.   101, 
65  S.  W.  292 ;   Aereback  v.  Myer.  165  Mo.  685,  65  S.  W.  1015 ;   Stinson 
V.  Call.  1G3  Mo.  323,  63  S.  W.  729. 
Kel.Mo.P.G.— 29 


450  HOMESTEAD  §  440 

for  her  debts.  In  1907,  a  section  was  added  to  the  statutes 
which  provides  that  if  a  widow,  being  a  housekeeper  or  the 
head  of  a  family,  dies  and  leaves  surviving  her  a  minor  child 
or  children,  her  homestead  in  the  lands  owned  by  her  at 
her  death,  to  the  extent  and  value  as  limited  by  the  general 
homestead  law,  shall  pass  to  and  vest  in  such  minor  child 
and  children,  and  shall  continue  for  his  or  their  use  or  ben- 
efit until  such  child  or  children  arrive  respectively  to  the 
age  of  twenty-one  years,  whereupon  the  homestead  shall 
pass  to  and  vest  in  the  heirs  of  the  deceased  widow.  Such 
homestead  is  not  subject  to  sale  for  the  payment  of  the 
debts  of  the  deceased  widow,  unless  such  debts  are  legally 
charged  thereon  in  her  lifetime.  No  child  or  children  can 
receive  the  benefits  of  this  section  who  have  already  receiv- 
ed or  derived  the  benefits  of  homestead  in  the  land  of  their 
deceased  father.^* 

§  440.  Changing  Homestead. — Whenever  a  housekeep- 
er or  head  of  a  family  has  acquired  in  accordance  with  the 
law  a  homestead,  and  after  such  acquisition  acquires  in  like 
manner  another  homestead,  either  with  the  proceeds  received 
from  the  consideration  arising  from  the  disposition  of 
the  prior  homestead,  or  any  other  means  not  derived  from 
the  property  of  such  housekeeper  or  head  of  a  family,  the 
second  homestead  is  not  liable  for  debts  from  which  the 
former  homestead  was  exempted.  The  prior  homestead 
thereupon  becomes  liable  for  his  debts,  if  he  retains  it.  All 
exemptions  attach  to  the  new  homestead,  and  if  the  original 
homestead  is  exempt  the  transfer  carries  all  the  homestead 
rights.  The  sale  of  a  homestead  for  the  purpose  of  rein- 
vesting the  proceeds  in  another  homestead  does  not  consti- 
tute an  abandonment  of  the  homestead  rights,  and  the  pro- 
ceeds which  arise  from  a  fraudulent  sale  of  a  homestead  are 
not  subject  to  garnishment.  Where  a  resident,  having 
homestead  rights  in  this  state,  exchanged  the  homestead 
for  land  in  Arkansas,  which  neither  he  nor  his  family  occu- 
pied, and  afterwards  exchanged  the  land  so  acquired  for 
other  property  in  this  state,  he  abandoned  his  homestead 
rights,  and  the  last  acqviired  property  was  not  exempt.'^ 

24  Rev.  St.  1909,  §  6709;  Chapman  v.  McGrath,  163  Mo.  292,  63 
S.  W.  S32 ;    Moore  v.  Wilkerson.  109  Mo.  334,  6S  S.  W.  103.5. 

2  5  Rev.  St.  1909,  §  6712;  Snod^rrass  v.  Copple,  203  Mo.  480,  101  S. 
W.  1090 ;  Kimberlin  v.  Gordon,  1.39  Mo.  App.  464,  122  S.  W.  1144 ;  D. 
M.  Osborne  &  Co.  v.  Evans,  185  Mo.  509,  84  S.  W.  867;    Goode  v. 


§  441  HOMESTEAD  451 

§  441.  Rights  of  Widow  and  Children  to  Homestead. — 
Under  the  homestead  law  as  it  stood  prior  to  the  amend- 
ment by  the  act  of  March  18,  1875,  upon  the  death  of  the 
husband  the  widow  and  minor  children  took  the  same  es- 
tate in  the  homestead  of  which  he  died  seized,  but  the  chil- 
dren only  had  an  interest  in  it  during  their  minority.  If  the 
husband  had  a  fee  simple  estate,  the  widow  took  the  same 
estate,  and  on  her  death  it  went  to  her  heirs,  to  the  exclu- 
sion of  her  husband's.'"  The  minor  children  have  an  inter- 
est in  the  use  of  the  homestead  during  their  minority,  of 
which  the  widow  cannot  deprive  them  by  sale  or  abandon- 
ment of  the  premises,  but  after  they  come  of  age  they  have 
no  further  interest  in  it  under  the  homestead  law  prior  to 
1875,  and  her  conveyance,  if  she  had  the  fee,  would  pass 
the  title,  or  it  would  descend  to  her  heirs. 

Under  the  statute  as  amended  in  1895,  and  as  it  now 
stands,  the  homestead  passes  to  and  vests  in  the  widow  or 
minor  children  ;  if  there  are  both,  then  to  such  widow  and 
children,  and  shall  continue  for  their  benefit  without  being 
subject  to  the  payment  of  the  debts  of  the  deceased,  until 
the  youngest  child  attains  its  majority,  and  until  the  death 
or  remarriage  of  such  widow.  The  children  have  the  joint 
right  of  occupancy  with  the  widow  until  they  respectively  ar- 
rive at  their,  majority,  and  the  widow  has  the  right  to  occupy 
the  homestead  during  her  life  or  widowhood,  and  upon  her 
death  or  remarriage  it  will  pass  to  the  heirs  of  the  husband; 
and  the  probate  court  having  jurisdiction  of  the  estate  must, 
when  necessary,  appoint  three  commissioners  to  set  out 
such  homestead.-^  The  important  fact  noticeable  in  this 
statute  is  that  the  right  of  the  widow  in  the  homestead  is 
limited  to  her  life  or  widowhood,  and  it  then  goes  to  her 
heirs. 

According  to  the  plain  reading  of  this  statute  the  home- 
stead cannot  in  any  event  be  regarded  as  assets  for  the  bene- 
fit of  creditors,  and  the  administrator  cannot,  as  he  could 

Lewis,  118  Mo.  .357,  24  S.  W.  61 ;  Rose  v.  Smith,  167  Mo.  81,  66  S.  W. 
940 ;  New  Madrid  Hanldnp  Co.  v.  lirowu,  165  Mo.  32,  65  S.  W.  297 ; 
Creatli  v.  Dale,  84  :Mo.  .j49  ;  Barton  v.  Walker,  105  Mo.  25,  65  S.  W. 
293;  Rouse  v.  Caton.  16S  Mo.  288,  67  S.  W.  578,  90  Am.  St.  Rep. 
456;    Black  v.  Ei)steiii.  221  Mo.  '2Xi\  120  S.  W.  754. 

2  6  Register  v.  Ilensley,  70  Mo.  189;  Skouten  v.  Wood,  57  Mo.  380; 
Grajrg  v.  Gragg,  65  Mo.  343;  Rogers  v.  Marsh,  73  Mo.  64;  Case  v. 
Mitzeuburg,  109  Mo.  311.  19  S.  W.  40. 

2  7  Rev.  St.  1909,  §  6708. 


452  HOMESTEAD  §  441 

under  the  former  statute,  sell  any  interest  or  remainder  in 
the  homestead  for  the  payment  of  debts,  for  after  the  wid- 
ow's interest  is  terminated  the  remainder  goes  to  the  hus- 
band's heirs.  It  may  have  been  the  intention  to  pass  the 
premises  to  his  heirs  if  there  be  no  creditors,  or  subject  to 
the  rights  of  creditors,  whereas  formerly  it  went  to  her  heirs 
or  was  at  her  disposal,  but  the  statute  does  not  so  provide. 
It  has  been  held  that  the  widow  and  children  do  not  hold  the 
homestead  as  tenants  in  common  or  in  severalty,  but  as  an 
entirety,  w^hile  they  continue  to  occupy  it;  that  no  child  of 
the  wife  by  marriage  before  or  after  her  coverture  with  the 
deceased  has  any  right  to  share  in  it  with  his  children  so  long 
as  they  are  minors ;  that  if  she  dies  or  alienates  the  estate 
before  the  minor  children  come  of  age,  they  will  be  entitled 
to  its  use."*  During  the  minority  of  the  children  neither 
the  widow  nor  her  grantee  is  entitled  to  partition  of  the 
homestead.^®  While  the  homestead  right  during  the  life- 
time of  the  owner  of  the  fee  has  been  defined  as  a  privilege 
in  the  nature  of  a  statutory  exemption  from  levy  and  sale 
under  execution,  the  homestead  which  upon  his  death  de- 
volves upon  the  widow  and  minor  children  is  of  a  different 
character.^^  By  virtue  of  the  section  giving  to  the  widow 
and  minor  children  their  rights  as  to  homestead  in  the  es- 
tate of  the  deceased  husband  and  father,  an  estate  vests  in 
them  instanter  on  his  death.  It  is  a  life  estate  in  the  widow, 
determinable  by  remarriage,  and  an  estate  for  years  in  the 
minor  children,  determinable  as  to  each  when  he  reaches 
his  majority.^^ 

The  homestead  right  of  the  widow  is  fixed  at  the  death 
of  the  husband  by  the  homestead  law,  and  a  devise  to  her 
does  not  defeat  her  claim  to  a  homestead  in  the  land  ac- 
quired during  coverture  when  she  and  her  children  continue 
to  reside  upon  it,^^  and  if  the  will  gives  her  a  different  estate 
she   may   renounce    its    provisions,    as    authorized    by   the 

28  Skonten  v.  Wood,  57  Mo.  380;    Keyes  v.  Hill,  30  Vt.  7G0. 

29  Brewington  v.  Brewington,  211  Mo.  48,  109  S.  W.  723 ;  Rhorer 
V.  Brockluige,  80  Mo.  544;  Simpson  v.  iScroggius,  182  Mo.  loe.  cit. 
571,  81  S.  W.  1120;  Quail  v.  Loiuas,  200  Mo.  674,  98  S.  W.  617; 
Black  V.  Ep.steiu,  221  Mo.  28(J,  307,  120  S.  W.  754. 

30  Brewington  v.  Brewington,  211  Mo.  48,  109  S.  W.  723;  Rogers  v. 
Moyes,  84  Mo.  520;  Iluf.schiiiidt  v.  Gro.^s,  112  Mo.  640,  20  S.  W. 
079;    In  re  Powell's  Estate,  157  Mo.  151,  57  S.  W.  717. 

31  Black  V.  Epstein,  221  Mo.  286,  120  S.  W.  754;  Brewington  v. 
Brewington,  211  Mo.  48,  109  S.  W.  723. 

3  2  Blaiidy  v.  Asher,  72  Mo.  27. 


§  442  HOMESTEAD  453 

dower  act,  and  hold  the  homestead.*'  The  widow  may  have 
both  dower  and  homestead  in  the  same  estate,  and  she  is 
not  estopped  from  claiming  her  homestead  by  the  assign- 
ment of  her  dower  in  the  premises  and  acceptance  of  the 
same  and  moving  and  residing  thereon,  ^*  nor  by  the  sale 
of  the  land  to  pay  debts. ^°  So  when  the  land  in  which  she 
has  such  right  has  been  sold  in  partition  she  is  entitled  to 
receive  out  of  the  proceeds,  first,  the  value  of  the  homestead, 
and  if  this  equals  or  exceeds  one-third  of  the  whole  of  the 
real  estate,  she  will  receive  nothing  more;  but  if  it  be  less, 
she  will  be  entitled  to  receive  by  way  of  dower  an  annuity 
upon  an  amount  sufficient  to  make  the  aggregate  equal  to 
one-third. 

The  value  of  her  life  estate  is  estimated  by  the  tables  pro- 
vided in  section  8499,  Rev.  St.  1909,  which  will  be  hereafter 
referred  to. 

An  administrator's  sale  to  pay  debts  does  not  divest  the 
homestead  right  of  the  widow  and  children,  but  the  sale  is 
subject  to  their  rights,  unless  the  land  was  sold  to  pay  debts 
contracted  before  the  homestead  was  acquired.^*'  Under  the 
statute  of  1875  such  lands  might  be  sold  to  pay  debts,  and 
when  the  widow  dies  and  the  children  come  of  age  the  pur- 
chaser will  be  entitled  to  possession. 

§  442.  Same — Only  a  Life  Interest. — By  the  amendment 
of  IMarch  18,  1875,  of  the  homestead  law,  the  homestead 
passes  to  the  widow  or  minor  children,  or  both,  and  con- 
tinues for  their  benefit  without  being  subject  to  the  pay- 
ment of  debts,  unless  legally  charged  thereon  in  the  lifetime 
of  the  husband,  until  the  youngest  child  comes  of  age,  and 
until  the  death  of  the  widow,  and  the  right  of  the  widow 
and  children  in  the  homestead  is  limited  to  that  period.  A 
child,  in  ventre  sa  mere  (unborn)  at  her  father's  death,  was 
held  by  the  Federal  court  to  be  entitled  to  a  homestead  given 
by  the  constitution  and  laws  of  North  Carolina.^^  Subject 
to  this  limited  right  of  homestead,  the  premises  are  gov- 
erned by  the  laws  relating  to  the  devise,  descent,  dower, 

83  Register  v,  Hensley,  70  Mo.  ISO;  Ball  v.  Ball,  165  Mo.  312,  65 
S.  W.  552. 

3  4Gragg  V.  Gragg,  65  Mo.  343;  Hardy  v.  Atkinson,  136  Mo.  App. 
595,  118  S.  W.  51G. 

3r.  Seek  V.  Hayiies,  68  Mo.  13. 

3  0  Ro-ers  V.  Marsh,  73  Mo.  04;  Anthony  v.  Rice,  110  Mo.  223,  19 
S.  W.  42:;. 

87  In  re  Seabolt  (D.  C.)  113  Fed.  766. 


454  HOMESTEAD  §  443 

partition  and  sale  for  the  payment  of  debts  against  the  es- 
tate of  the  deceased.^^  Under  this  statute  the  interest  of 
the  deceased  in  the  homestead  premises  could  be  sold  to  pay 
debts,  subject  of  course  to  the  rights  of  the  widow  and 
minor  children,  and  the  purchaser  will  be  entitled  to  pos- 
session when  their  rights)  expire.  Under  the  present  statute 
the  rights  of  the  minor  children  are  suspended  when  they 
reach  their  majority  until  the  death  or  marriage  of  the 
widow,  upon  which  event  all  his  children  will  take  it  as 
heirs.^^  The  probate  court  pending  the  administration  of 
the  estate  has  authority  to  order  the  administrator  to  sur- 
render possession  of  the  homestead  to  the  party  entitled 
thereto.*" 

§  443.  Abandonment  of  Homestead. — While  a  tem- 
porary removal  from  the  homestead  will  not  amount  to  an 
abandonment,  yet  if  the  owner  of  the  place  removes  and  es- 
tablishes a  new  home  and  residence  elsewhere,  evidenced 
by  the  exercise  of  the  ordinary  acts  of  citizenship  and  busi- 
ness at  such  new  home,  this  would  be  an  abandonment  of 
the  former  homestead,  on  the  theory  that  a  man,  or  the 
head  of  a  family,  can  have  but  one  homestead  at  the  same 
time.*^  Where  a  prior  homestead  has  been  abandoned,  the 
widow  and  children  cannot  by  removing  back  upon  it  after 
the  death  of  the  husband  regain  it  so  as  to  hold  it  exempt 
from  the  demands  of  the  creditors  of  the  estate.  The  home- 
stead is  only  exempt  to  them  from  the  payment  of  debts 
when  occupied  by  the  deceased  and  his  family  at  the  time 
of  his  death. *- 

§  444.     Homestead  and  Dower  Set  Off  in  Probate  Court. 

— The  probate  court  having  jurisdiction  of  the  estate  of 
the  deceased  housekeeper  or  head  of  a  family  must,  when 
necessary,  appoint  three  commissioners  to  set  out  the  home- 
stead to  the  person  or  persons  entitled  thereto."*^ 

The  commissioners  appointed  to  set  out  the  homestead 
may  also  set  out  the  widow's  dower,  if  she  be  entitled  to 

3  8  Rev.  St.  1SS9,  §  5439.  3  9  Rev.  St.  1909,  §  6708. 

4  0  Brown  v.  Brown's  Adm'r,  68  Mo.  388;    Rev.  St.  1909,  §  6708. 

*i  Atchison  Sav.  Bank  v.  Wheeler's  Adm'r,  20  Kan.  625 ;  Titman 
V.  Moore,  43  111.  169;  Cabeen  v.  Mulligan,  37  111.  230,  87  Am.  Dec. 
247 ;  Anderson  v.  Kent,  14  Kan.  207 ;  Barton  v.  Walker,  165  Mo.  25, 
65  S.  W.  293 ;  New  Madrid  Banking  Co.  v.  Brown,  165  Mo.  33i  65  S. 
W.  297.' 

4  2  Atchison  Sav.  Bank  v.  TVTieeler's  Adm'r,  20  Kan.  625. 

4  3  Rev.  St.  1909,  §  0708. 


§  444  HOMESTEAD  455 

any.  They  must  first  set  out  the  homestead,  and  from  the 
residue  of  the  real  estate  set  out  lier  dower,  but  the  amount 
of  dower  will  be  diminished  ])y  the  amount  of  interest  of  the 
widow  in  the  homestead,  and  if  the  interest  of  the  widow 
in  the  homestead  shall  equal  or  exceed  one-third  interest 
for  and  (lurin_c:  her  natural  life  in  all  the  real  estate  of  which 
her  husband  died  seized,  no  dower  can  be  assigned/* 

After  the  homestead  has  been  once  severed  and  set  out 
for  the  widow  and  minor  children  in  the  real  estate  of  the 
deceased  owner  of  the  fee,  the  estate  vested  in  them  is  of 
such  a  character  that,  in  the  absence  of  fraud,  the  home- 
stead cannot  be  rc\alued  and  a  greater  or  less  extent  of  land 
be  set  apart  to  them  on  a  showing  that  it  has  since  the  as- 
signment increased  or  decreased  in  value. ^'^ 

In  the  present  condition  of  the  law  it  is  thought  that  a 
proceeding  in  the  probate  court  to  set  ofif  homestead  or 
dower  is  of  very  doubtful  propriety,  and  can  only  be  main- 
tained during  the  administration  of  the  estate.  If  it  be  nec- 
essary to  sell  real  estate  to  pay  debts,  and  there  shall  be 
any  question  as  to  the  right  of  the  administrator  to  sell  on 
account  of  the  claim  of  a  homestead,  it  may  be  set  off  either 
at  the  instance  of  the  administrator  or  persons  claiming  it; 
and  should  the  right  of  dower  also  exist,  it  may  be  set  oft 
in  the  same  proceeding.  The  statute  does  not  say  at  whose 
motion  or  by  what  particular  procedure  the  assignment  of 
homestead  and  dower  shall  be  made ;  but  as  it  is  a  proceed- 
ing which  may  affect  the  rights  of  other  persons  whose  inter- 
ests are  adverse  to  the  widow's  a  petition  should  be  filed 
making  such  persons  defendants,  and  proceedings  had  there- 
on similar  to  those  in  the  circuit  court  in  the  assignment 
of  homestead  and  dower  and  partition  of  lands.  Upon  filing 
the  petition  the  judge  or  clerk  should  issue  a  summons  in- 
dorsed or  annexed  to  the  petition,  which  should  be  served 
as  process  in  other  civil  actions,  and  if  any  defendant  can 
not  be  summoned  and  does  not  appear,  he  should  be  notified 
by  publication.^'' 

We  submit  a  few  forms  which,  when  considered  in  con- 
nection with  the  practice  in  the  circuit  court  for  the  assign- 

•»4  Rev.  St.  1009,  §  G710;  Ilaray  v.  Atkinson,  i:k!  Mo.  App.  595,  118 
S.  W.  516. 

45  Brewington  v.  Brewinirton,  L'll  Mo.  4.6,  1U9  S.  W.  T2o. 
*e  Kev.  St.  1909,  §§  ^UO,  379. 


456  HOMESTEAD  §  444 

ment  of  dower,  will  indicate  the  course  to  be  pursued  in  the 
probate  court. 

Petition  for  Homestead  and  Dozuer 


In  the  probate  court  of 
Couuty. 


Mary  Jones,  widow, 

vs. 
James  Jones,  Hiram  Jones,  Peter  Jones, 

Sarah  Scott  and  John   Scott,  her  hus- 
band, and  Eli  Williams,  administrator 

of  the  estate  of  Ellis  Jones,  deceased. . 

To  the  Honorable  the  Probate  Court  of  the  County  of ,  in  the 

State  of  Missouri: 

Your  petitioner,  Mary  Jones,  states  that  Ellis  Jones,  late  of  said 

county,   died   intestate  on  the  day  of  ,   19 — ,   leaving 

your  petitioner,  his  widow,  and  four  children,  to-wit:  James,  Hiram, 
and  Peter  Jones,  and  Sarah  Scott,  formerly  Sarah  Jones,  who  inter- 
married with  and  is  the  wife  of  the  defendant  John  Scott,  surviving 
him,  who  are  all  the  heirs  and  legal  representatives  of  the  deceased ; 
that  said  James  Jones  and  Sarah  Scott  have  attained  their  majority, 
but  the  said  Hiram  and  Peter  are  minors,  the  former  seven  and  the 
latter  five  years  of  age;  that  the  said  Ellis  Jones  was  at  the  time 
of  his  death  the  head  of  a  family,  consisting  of  your  petitioner,  his 
wife,  and  the  two  minor  children,  Hiram  and  Peter,  above  named, 
and  was  the  owner  in  fee  simple  and  died  seized  of  the  following 
premises,  with  the  appurtenances,  which  with  his  family  he  lived 
upon,  used,  occupied  and  enjoyed  as  a  homestead  at  the  time  of  his 
death,  to-\^•it:  (here  describe  the  premises);  which  said  premises  do 
not  exceed  (state  the  quantity)  nor  fifteen  hundred  dollars  in  value; 
and  that  your  petitioner  and  said  minor  children  have  continued  to 
occupy  said  homestead  since  the  death  of  said  Ellis  Jones,  and  claim 
a  right  to  the  same  as  a  homestead,  during  the  minority  of  said  chil- 
dren and  until  the  death  of  your  petitioner. 

If  the  deceased  owned  other  lands  in  which  dower  is  claimed,  say: 
Tour  petitioner  would  further  state  that  said  Ellis  Jones  was  also 
at  the  time  of  his  death  the  owner,  and  seized  in  fee  simple,  of  the 
following  lands,  situate  in  the  county  of  and  State  of  Mis- 
souri, to-wit:  (here  describe  the  land),  and  that  your  petitioner  is 
entitled  to  and  claims  her  dower  in  all  the  lands  last  aforesaid. 

Your  petitioner  further  states,  that  Eli  Williams  is  the  administra- 
tor of  the  estate  of  Ellis  Jones,  deceased,  duly  appointed  as  such  by 

the  probate  court  of  said county,  on  the day  of , 

19 — ;  that  said  estate  is  in  course  of  administration  and  settlement 
in  this  court ;  that  the  same  is  largely  indebted,  and  the  personal 
assets  will  not  be  sufficient  to  pay  the  debts  and  liabilities  of  said 
estate,  and  it  will  be  necessary  to  sell,  and  the  said  administrator  is 
about  to  procure  an  order  for  the  sale  of  said  real  estate,  or  some 
portion  thereof,  of  which  the  said  Ellis  .Jones  died  seized  as  afore- 
said, including  the  aforesaid  homestead,  to  make  assets  for  the  set- 
tlement of  said  estate. 

Wherefore,  your  petitioner  prays  the  court  to  appoint  three  com- 
missioners to  first  set  out  to  her,  for  the  benefit  of  herself  and  the 


§  444  HOMESTEAD  457 

said  minor  children,  the  homestead  as  aforesaid  claimed  by  her,  and 
that  from  the  residue  of  said  real  estate  above  described,  of  which 
the  said  Ellis  Jones  died  seized  in  fee  simple,  the  said  commissioners 
set  off  and  admeasure  her  proper  dower  according  to  law.  And  she 
will  ever  pray.  MARY  JONES, 

Widow  of  Ellis  Jones,  Deceased. 

Order  for  Assignment  of  Homestead  and  Dower 

Mary  Jones,  widow,       ^ 

vs.  L     Petition  for  the  assignment  of  homestead 

(Name  the  defendants.)  J  and  dower. 

Now  at  this  day  comes  the  said  petitioner  and  it  appearing  to 
the  court,  that  the  summons  in  this  behalf  issued,  has  been  duly 
served  on  all  of  the  said  defendants  more  than  fifteen  days  prior  to 
the  first  day  of  the  present  term  of  this  court,  and  it  appearing  that 
the  said  Hiram  Jones  and  Peter  Jones  are  minors  under  the  age  of 
twenty-one  years,  and  have  no  legal  guardian,  the  court  now  here 
appoints  A.  B.  guardian  ad  litem  for  the  said  minors,  who  files  his 
answer  in  that  behalf  in  the  following  words  and  figures,  to-wit: 
(here  insert),  and  the  said  other  defendants  being  three  times  called 
came  not,  but  herein  wholly  make  default,  and  due  proof  being  made 
of  the  matters  stated  and  charged  in  the  petition,  it  is  therefore 
considered  and  ordered  by  the  court  that  the  petitioner.  Mary  Jones, 
is  entitled  to  a  homestead  in  the  folloAving  premises:  (here  describe 
them),  for  the  benefit  of  herself  and  said  minor  children  during  their 
minority,  and  until  her  death,  and  that  the  same  be  set  off  to  her 
and  them  (not  exceeding  one  hundred  and  sixty  acres  in  quantity, 
and  not  exceeding  fifteen  liundred  dollars  in  value),  and  that  she  is 
also  entitled  to  dower  and  should  be  endowed  of  the  one-third  part 
of  all  the  lands  mentioned  in  the  petition,  less  the  amount  of  the 
interest  of  the  said  petitioner  in  the  said  homestead,  for  and  during 
the  period  of  her  natural  life. 

And  it  is  further  ordered,  that  John  Rea.  James  Smitli  and  Wil- 
liam Stout  (three  discreet  and  disinterested  persons,  not  of  kin  to 
any  of  the  parties),  be  and  they  are  liereby  appointed  commissioners 
to  set  out  the  said  homestead,  and  set  olf  and  assign  dower  in  the 
premises  as  mentioned  and  claimed  in  said  petition,  who  .shall  first 
set  out  the  homestead  in  the  premises  in  that  behalf,  and  from  the 
residue  of  said  real  estate  shall  set  out  and  admeasure  the  dower  of 
petitioner,  but  the  amount  of  such  dower  shall  be  diminished  by  the 
amount  of  the  interest  of  the  petitioner  in  the  homestead,  and  if  her 
interest  in  said  homestead  shall  equal  or  exceed  one-third  interest 
for  and  during  her  natui'al  life,  in  and  to  all  the  real  estate  of 
which  the  said  Ellis  Jones  died  seized,  no  dower  shall  be  assigned 
to  her. 

Oath  of  Commissioners 

State  of  Missouri,     ] 

County  of  . j 

John  Kea.  James  Smith  and  William  Stout,  the  within  named 
commissioners,  each  being  duly  sworn,  do  severally  depose  and  say 


458  HOMESTEAD  §  444 

that  they  mil  faithfully,  honestly  and  Impartially  discharge  their 
duties  and  execute  the  trust  reposed  in  them  as  such  commission- 
ers, according  to  the  best  of  their  skill  and  judgment. 

JOHN  REA, 
JAMES    SMITH, 
WM.  STOUT. 
Subscribed  and  sworn  to  before  me,  June  10,  19 — . 

G.  T.  BRYAN, 
Probate  Judge. 

This  oath  may  be  indorsed  on  or  attached  to  the  copy  of 
the  order  appointing  the  commissioners. 

The  commissioners  should,  after  setting  out  the  home- 
stead, proceed  to  ascertain  whether  such  homestead  is  equal 
to  one-third  interest  in  value  of  all  the  real  estate  of  which 
her  husband  died  seized,  and  if  it  is,  no  dower  can  be  as- 
signed, but  if  not,  the  value  of  the  homestead  should  be  es- 
timated and  an  additional  quantity  of  land  be  set  out,  which 
with  the  homestead  shall  equal  the  one-third  interest  in  all 
the  real  estate  of  her  deceased  husband.*'^ 

Report  of  Commissioners 

We,   the   under.signed   commissioners,   appointed   by   an   order   of 

the  probate  court  of county,  to  set  out  to  Mary  Jones,  widow, 

and  Hiram  and  Peter  Jones,  minor  children  of  Ellis  Jones,  deceased, 
a  homestead  in  the  premises  lately  occupied  by  the  said  Ellis  Jones, 
and  now  claimed  as  a  homestead  by  and  for  said  widow  and  minor 
children,  as  mentioned  and  described  in  the  order  of  court  herewith 
returned,  and  also  to  set  out  and  assign  the  dower  of  the  said  Mary 
Jones  in  the  lands  and  tenements  of  her  late  husband,  Ellis  Jones, 
deceased,  in  the  said  order  named,  do  report  that  after  having  been 
first  duly  sworn  according  to  law,  we  did  proceed  to  the  premises 
above  mentioned  to  perform  that  duty,  and  we  do  set  out  to  the  said 
Mary  Jones  and  said  minor  children  as  a  homestead  the  following 
portion,  a  plat  of  which  is  herewith  returned,  to-wit:  (liere  describe), 
being  in  quantity  (here  state  the  same),  and  of  the  value  of  (here 
state  the  value),  and  we  do  further  assign,  admeasure  and  set  over 
to  the  said  Mary  Jones  for  her  dower  aforesaid  from  and  in  the 
residue  of  said  lands  of  the  said  Ellis  Jones,  deceased,  the  following 
lands,  to-wit:  (here  describe  the  land  set  off),  which,  together  with 
her  interest  in  said  homestead,  we  estimate  to  be  equal  to  the  one- 
third  interest  during  her  natural  life  in  all  the  real  estate  men- 
tioned in  said  order,  and  of  which  her  late  husband,  Ellis  Jones,  died 
seized. 

Witness  our  hands  this  12th  day  of  June,  19 — . 
JOHN  REA,  1 

JAMES   SMITH,  I  Commissioners. 
WM.  STOUT,       J 

4T  Gore  V.  Riley,  161  Mo.  238,  01  S.  W.  8.37. 


§  445  PEESENT    VALUE,  HOW  ASCERTAINED  459 


CHAPTER  XXXV 

THE  PRESENT  VALUE  OF  DOWER,  CURTESY  AND  ESTATES 
FOR  LIFE,  now  ASCERTAINED 

§  445.     When  the  widow  has  dower. 

446.  Mortality  tables. 

447.  Value  of  dower  ascertained. 

§  445.  When  the  Widow  Has  Dower  in  real  estate  and 
a  proceeding  be  instituted  to  partition  the  same,  and  for  the 
admeasurement  and  setting  ofif  said  dower,  or  if  that  can- 
not be  done  without  prejudice  to  the  parties  in  interest,  for 
the  sale  of  the  premises  and  division  of  the  proceeds,  and 
the  proceeding  results  in  a  sale  of  the  property,  if  the  wid- 
ow be  a  party,  her  right  of  dower  will  be  extinguished  or 
barred,  and  the  court  will  direct  the  present  value  of  the 
dower  interest  to  be  paid  to  the  widow.^ 

So,  when  in  any  case  the  premises  in  which  there  is  a  life 
estate  or  an  estate  for  years  or  for  a  definite  term  may  be 
sold,  the  present  value  of  such  life  or  limited  estate  may  be 
ascertained  and  paid  to  the  party  entitled  thereto,  as  when 
the  husband  has  an  estate  by  the  curtesy,  or  the  widow  has 
dower,  and  the  value  of  the  premises  exceed  the  value  of 
the  homestead,  and  such  homestead  cannot  be  assigned  and 
set  off.  In  all  such  cases  the  present  value  of  the  dower  or 
curtesy  may  be  ascertained  and  estimated  by  statutory  ta- 
bles of  expectancy,  or  by  annuity  tables.  For  instance,  the 
present  value  of  the  dower  is  the  present  value  of  an  an- 
nuity or  sum  payable  annually,  which  would  be  the  inter- 
est at  the  rate  of  six  per  cent,  per  annum  upon  one-third  of 
the  sum  produced  by  the  sale  of  the  premises  during  the 
time  which  she  is  expected  to  live.  The  same  rule  would 
apply  to  an  estate  by  the  curtesy  or  any  life  estate  in  the 
premises.  But  in  the  case  of  a  life  estate,  the  period  of 
life  being  indefinite  and  uncertain,  the  best  and  only  way 
to  arrive  at  the  present  value  of  such  an  estate  is  to  calcu- 
late the  annual  income  or  interest  upon  the  one-third  of  the 
sum  produced  by  the  sale  in  case  of  dower.  An  annui- 
ty is  a  stated  sum  payable  annually,  and  it  may  be  granted 
by  deed  or  by  will,  or  result  by  operation  of  law.    It  is  gen- 

1  Rev.  St.  1909,  §§  2;j.j9,  2G02. 


4G0  PRESENT    VALUE,  HOW   ASCERTAINED  §  445 

erally  payable  at  the  end  of  the  year,  unless  a  different  time 
has  been  fixed  therefor.  Its  duration  will  depend  upon  the 
terms  of  the  instrument  by  which  it  is  given  or  the  law 
which  authorizes  it.  If  it  be  for  life,  it  ceases  upon  the 
death  of  the  annuitant,  and  if  it  be  for  years,  of  course  it 
ceases  at  the  expiration  of  the  time  given. 

The  value  of  life  estates  are  computed  upon  the  basis  of 
the  statutory  mortality  tables  set  forth  in  chapter  82,  Rev. 
St.  1909.  The  statutory  table  does  not  apply  to  and  cannot 
be  employed  to  fix  the  value  of  inchoate  dower,  nor  can  it 
be  used  for  determining  a  widow's  interest  in  a  homestead 
estate.^  Since  the  amendment  of  the  homestead  law  in 
1895  limiting  the  estate  of  the  widow  by  death  or  remarriage 
there  is  no  possible  way  of  computing  the  present  value  of 
a  widow's  homestead  interest  as  she  is  liable  to  remarry  at 
any  time.  The  statute  comprehends  within  its  terms  only 
tenants  for  life,  curtesy  and  dower.  The  widow's  interest 
in  the  homestead  is  not  an  unqualified  life  tenancy  as  it  is 
determined  in  the  event  of  her  remarriage.  The  practice 
generally  has  been  in  trial  courts  to  appoint  a  trustee  to 
care  for  and  loan  the  fund  accruing  to  the  widow  by  virtue 
of  her  homestead  right. ^ 

§  446.  Mortality  Tables. — The  statute  provides  that 
when  a  party,  as  tenant  for  life,  or  by  the  curtesy,  or  in 
dower,  is  entitled  to  the  annual  interest  on  a  sum  of  money 
or  is  entitled  to  the  use  of  any  estate,  or  part  thereof,  and 
is  willing  to  accept  a  gross  sum  in  lieu  thereof,  or  the  par- 
ty liable  for  such  interest,  or  affected  by  such  claim,  has 
the  right  to  pay  a  gross  sum  in  lieu  thereof,  or  if  the  court 
in  any  legal  proceedings  adjudge  or  decree  a  gross  sum  to 
be  paid  in  lieu  thereof,  the  sum  shall  be  estimated  accord- 
ing to  the  then  value  of  an  annuity  of  six  per  cent,  on  the 
principal  sum  during  the  probable  life  of  such  person,  ac- 
cording to  the  following  table,  showing  the  present  value, 
on  the  basis  of  six  per  cent,  interest,  of  an  annuity  of  one 
dollar  (according  to  the  Carlisle  tables  of  mortality)  paya- 
ble at  the  end  of  every  year  that  a  person  of  a  given  age 
may  be  living,  for  the  ages  therein  stated: 

2  Aiple-Heramelmann  Real  Estate  Co.  v.  Spelbrink,  211  Mo.  071, 
114  S.  W.  480,  14  Ann.  Cas.  6r;2 ;  Coleman  v.  Coleman,  122  Mo.  App. 
715,  99  S.  W.  4.59 ;  Dougherty  v.  Dougherty,  204  Mo.  22S,  102  S.  W. 
1099;    Hill  v.  Ground,  114  Mo.  App.  SO,  89  S.  W.  .34.3. 

3  Coleman  v.  Coleman,  122  Mo.  App.  715,  99  S.  W.  459. 


§446 


PEESENT   VALUE,  HOW   ASCEETAINED 


461 


Tarte 


Age. 

Present  value. 

Age. 

Present  value. 

Age. 

Present  value. 

Age. 

Present  value. 

0 

$10,439 

26 

$13,368 

52 

$10,208 

78 

$4,238 

1 

12.07S 

27 

13.275 

53 

9.988 

79 

4.040 

2 

12.925 

28 

13.182 

54 

9.761 

80 

3.858 

3 

13.652 

29 

13.096 

55 

9..524 

81 

3.656 

4 

14.042 

30 

13.020 

56 

9.280 

82 

3.474 

5 

14.325 

31 

12.942 

57 

9.027 

83 

3.286 

6 

14.460 

32 

12.860 

58 

8.772 

84 

3.102 

7 

14.518 

33 

12.771 

59 

8.529 

85 

2.909 

8 

14.526 

34 

12.675 

60 

8..-.04 

86 

2.739 

9 

14.500 

35 

12.573 

61 

8.10S 

87 

2.599 

10 

14.448 

36 

12.465 

61 

7.913 

88 

2.515 

11 

14.384 

37 

12.354 

63 

7.714 

89 

2.417 

12 

14.321 

38 

12.239 

64 

7..502 

90 

2.266 

13 

14.257 

.39 

12.120 

65 

7.2S1 

91 

2.248 

14 

14.191 

40 

12.002 

(i6 

7.049 

92 

2.337 

15 

14.126 

41 

11.890 

67 

6.803 

93 

2.440 

16 

14.067 

42 

11.779 

68 

6.546 

94 

2.492 

17 

14.012 

43 

11.668 

69 

6.277 

95 

2.522 

18 

13.956 

44 

11..5.-.1 

70 

5.998 

96 

2.486 

19 

13.897 

45 

11.42S 

71 

5.704 

97 

2.368 

20 

13.835 

t6 

11.2!»(! 

72 

5.424 

98 

2.227 

21 

13.769 

47 

11.1.-54 

73 

5.170 

99 

2.004 

22 

13.697 

48 

10.99.S 

74 

4.944 

100 

1.596 

23 

13.621 

49 

10.S2.", 

75 

4.760 

101 

1.175 

24 

13.541 

50 

10.631 

76 

4.579 

102 

0.744 

25 

13.456 

51 

10.422 

77 

4.410 

103 

0.314 

(Laws  1905,  p.  139.) 

To  use  this  table  calculate  the  interest  at  six  per  cent, 
upon  the  sum  to  the  income  of  which,  or  upon  the  value  of 
the  property  to  the  use  of  which,  the  person  is  entitled ; 
multiply  this  interest  by  the  present  value  of  an  annuity  of 
one  dollar,  as  set  opposite  the  person's  age  in  the  table,  and 
the  product  will  be  the  gross  value  of  the  life  estate  of  such 
person  therein.  The  age  of  such  person  as  indicated  by  the 
birthday  nearest  to  the  time  when  said  computation  is  made 
shall  be  taken  to  be  the  age  of  such  person  in  making  said 
computation. 

Suppose  a  person  whose  age  is  forty-two  is  tenant  for 
life  in  the  whole  of  an  estate  worth  ten  thousand  five  hun- 
dred dollars ;  the  annual  interest  on  that  sum  at  six  per 
cent,  is  six  hundred  and  thirty  dollars.     The  present  value 


4G2  PRESENT   VALUE,  HOW    ASCERTAINED  §  447 

of  an  annuity  of  one  dollar  at  the  age  of  forty-two,  as  ap- 
pears by  the  table,  is  eleven  dollars  seventy-seven  cents  and 
nine  mills,  which  multiplied  by  six  hundred  and  thirty  dol- 
lars, gives  seven  thousand  four  hundred  and  twenty  dollars 
and  seventy-seven  cents  as  the  gross  value  of  such  life  es- 
tate in  the  premises,  or  the  proceeds  thereof.  Again,  sup- 
pose a  widow  whose  age  is  thirty-six  is  entitled  to  dower 
in  real  estate  worth  twelve  thousand  dollars ;  interest  on 
four  thousand  dollars,  the  third  part  thereof,  for  one  year, 
is  two  hundred  and  forty  dollars,  which,  multiplied  by 
twelve  dollars  forty-six  cents  and  five  mills,  the  present 
value  of  annuity  of  one  dollar  at  the  age  of  thirty-six,  as 
appears  by  the  table,  gives  two  thousand  and  nine  hundred 
and  ninety-one  dollars  and  sixty  cents,  as  the  gross  value 
of  such  dower. 

§  447.  Value  of  Dower  Ascertained. — In  a  proceeding 
to  set  off  dower,  if  the  commissioners  report  that  the  prop- 
erty is  not  susceptible  of  division  without  great  injury 
thereto,  a  jury  may  be  impaneled  to  inquire  of  the  yearly 
value  of  the  widow's  dower  therein  and  assess  the  same  ac- 
cordingly, and  the  court  will  thereupon  render  judgment 
that  there  be  paid  to  such  widow,  as  an  allowance  in  lieu  of 
dower,  on  the  day  therein  named,  the  sum  so  assessed,  and 
the  like  sum  on  the  same  day  every  year  thereafter  during 
her  natural  life.*  It  might  be  desirable  and  to  the  interest 
of  all  concerned  to  settle  this  judgment  and  allowance  by 
the  payment  of  a  sum  in  gross  as  the  present  value  of  said 
dower  judgment.  The  present  value  as  the  amount  of  the 
annual  income  is  fixed,  may  be  readily  ascertained  by  the 
use  of  the  table  given  in  the  preceding  section. 

4  Rev.  St.  1909,  §§  376,  377. 


§  448  ArrOINTMENT  OF  GUARDIANS  403 

CHAPTER  XXXVI 
OF  THE  APPOINTMENT  OF  GUAUIHANS  AND  CURATORS 

§  44S.  Definitions  and  yoneral  olis('rv:iti<jns. 

449.  Same — Testamentary  gnardians. 

450.  Same — The  ward. 

451.  Who  may,  and  who  may  not.  he  suardian  or  curator. 

452.  For  whom  and  when  to  he  appointed. 
4')^.  Proceeding's  for  selection  of  cnrator. 

454.  When  ward  may  select  another  snardiau  or  curator. 

455.  Puhlic  administrator — Puhlic  guardian. 

456.  Appointment,  how  made. 

457.  Tlie  bond. 

458.  Transfer  of  guardianship. 

In  many  respects  the  office  of  £2:tiarfHan  or  curator  is  sim- 
ilar to  that  of  executor  or  administrator;  l)Oth  impose  ob- 
ligations and  involve  responsil)ility  under  the  law,  and  nei- 
ther is  a  source  of  speculation  or  profit. 

In  the  preceding  portion  of  this  work  the  rights,  duties 
and  liabilities  of  executors  and  administrators  have  been 
very  fully  and  specifically  pointed  out  and  stated.  We  will 
now  proceed  to  the  consideration  of  the  relation  of  guardian 
and  ward. 

§  448,  Definitions  and  General  Observations. — By  the 
civil  law  there  were  two  kinds  of  guardians,  viz. :  guardians 
of  the  person,  called  tutors,  and  guardians  of  the  estate, 
called  curators.  The  tutor  had  charge  of  the  maintenance 
and  education  of  the  minor,  and  the  curator  had  the  care 
and  custody  of  the  minor's  estate.  In  general,  the  guardian 
in  Missouri  performs  the  duties  of  both  tutor  and  curator, 
yet,  these  offices  may  be  performed  by  ditterent  persons — 
we  may  have  a  guardian  of  the  person — tutor,  and  a  curator 
of  the  estate,  of  a  minor,  at  the  same  time.^  *  By  the  com- 
mon law  there  were  other  distinctions  and  divisions  of 
guardians,  such  as  guardians  by  nature;  guardians  by  nur- 

1  Rev.  St.  1909,  §§  403,  422. 


*The  domicile  of  a  ward  under  fourteen  years  of  age  is  not  changed 
by  the  guardian  moving  him  to  another  county,  and  in  case  of 
the  death  of  such  guardian  the  probate  court  of  the  county  in 
which  the  ward's  parents  resided  lias  jurisdiction  to  ai)point  a  suc- 
cessor, and  not  the  court  at  the  place  where  the  guardian  died.  Mar- 
lieineke  v,  Grothaus,  72  Mo.  204. 


464  APPOINTMENT  OP  GUARDIANS  §  448 

ture;  guardians  by  socage;  testamentary  guardians;  stat- 
utory guardians,  and  guardians  ad  litem ;  but  some  of  these 
divisions  and  distinctions  have  become  obsolete,  and  the  dif- 
ferent species  of  guardianship  are,  in  this  country,  essen- 
tially merged  into  two  kinds,  viz, :  guardians  by  nature  and 
statutory  guardians. 

The  guardian  of  the  person,  whether  natural  or  statutory, 
is  entitled  to  the  charge,  custody  and  control  of  the  person 
of  the  ward,  and  the  care  of  his  education,  support  and 
maintenance.  The  curator,  as  such,  is  entitled  to  the  man- 
agement of  the  estate  of  the  minor,  subject  to  the  superin- 
tending control  of  the  probate  court.  The  statutory  guard- 
ian of  both  the  person  and  the  estate  of  a  minor  has  all  the 
powers  and  must  perform  all  the  duties  both  of  a  guardian 
of  the  person  and  a  curator.^  The  guardian  by  nature  is 
the  father,  and  on  his  death,  or  when  there  is  no  lawful  fa- 
ther, the  mother.  As  guardian  by  nature,  the  father  or 
mother,  as  the  case  may  be,  is  entitled  to  the  custody  and 
control  of  the  person  and  education  of  the  minor  child  or 
ward  and  of  such  property  as  came  to  the  minor  from  the 
parent  acting  as  guardian.  This  control  is  natural,  and  the 
parent  is  not  required  to  give  bond  or  account  as  other 
guardians  or  curators.^  But  where  a  minor  child  derives 
property  from  another  source  than  the  parent  who  is  its 
natural  guardian,  the  parent,  before  he  or  she  can  assume 
control  thereof,  must  qualify  as  curator,  give  security,  and 
account  as  other  curators  are  required  to  do.* 

Guardians  appointed  by  the  courts,  by  virtue  of  statutory 
authority,  have  virtually  superseded  all  other  kinds  of  guard- 
ians, for  guardians  ad  litem  and  testamentary  guardians 
may  be  considered  as  statutory  guardians,  because  their  ap- 
pointment is  authorized  by  statute.  A  guardian  ad  litem 
is  one  appointed  for  the  special  purpose  of  representing  the 

2  Rev.  St.  1909,  §  422 ;  Landis  v.  Eppstein,  82  Mo.  99 ;  State,  to 
Use  of  Jacobs,  v.  Hearst,  12  Mo.  365,  51  Am.  Dec.  167;  Duncan  v. 
Crook,  49  Mo.  116. 

3  Rev.  St.  1909,  §  40.'] ;  In  re  Scarritt,  76  Mo.  565,  43  Am.  Rep. 
768 ;  De  Jarnett  v.  Harper,  45  Mo.  App.  415 ;  Marshall  v.  Wabash 
R.  Co.,  120  Mo.  275,  25  S.  W.  179;  Oehmen  v.  Portmann,  153  Mo. 
App.  240,  133  S.  W.  104 ;  Brandon  v.  Carter,  119  Mo.  572,  24  S.  W. 
10.35,  41  Am.  St.  Rep.  673. 

*  Rev.  St.  1909,  §  403 ;  Duncan  v.  Crook,  49  Mo.  116 ;  McCarty  v. 
Rountree,  19  Mo.  345;  State  ex  rel.  Festor  v.  Staed,  143  Mo.  248, 
45  S.  W.  50. 


§  450  APPOINTMENT   OF   GUARDIANS  465 

interests  of  a  minor  in  some  action  or  proceeding  pending 
in  court,  to  which  the  minor  is  a  party. 

§  449.  Same — A  Testamentary  Guardian  is  one  desig- 
nated for  that  trust  by  the  lawful  father  of  a  minor  in  his 
will ;  and  if  such  person  accept  and  give  bond,  he  stands 
upon  the  same  footing  as  guardian  appointed  by  the  court, 
except,  that  the  minor  cannot  choose  another  guardian  on 
arriving  at  fourteen  years  of  age,  unless  such  guardian  de- 
clines to  serve  longer  and  notifies  the  court  thereof,  or  his 
appointment  be  revoked.  The  effect  of  an  appointment  by 
will  is  to  give  the  person  named  a  preference  over  all  others 
without  regard  to  his  place  of  residence  within  the  state. 
or  the  choice  of  the  minor;  but  if  he  fails  to  notify  the 
court,  or  judge  thereof  in  vacation,  of  his  acceptance  and 
give  bond  and  security  within  six  months  after  tiie  probate 
of  the  will,  the  court,  or  judge  in  vacation,  may  appoint  a 
guardian  as  if  no  appointment  had  been  made  by  the  tes- 
tator."* 

§  450.  Same — Of  the  Ward. — A  ward  is  a  minor  whose 
person  or  estate  or  both  is  under  the  control  and  in  the 
care  of  a  guardian  or  curator. 

The  relation  of  guardian  and  ward  is  much  the  same  as 
that  of  parent  and  child,  until  the  child  arrives  at  the  age 
of  majority.  It  usually  arises  on  the  death  of  the  father, 
and  is  intended  to  supply  the  place  of  the  lost  parent,  yet, 
as  we  have  seen,  where  the  infant  has  an  estate,  not  derived 
from  the  parents,  or  the  parents  are  incompetent  or  unfit 
for  the  duties  of  guardian,  the  courts  may  appoint  a  guard- 
ian or  curator  of  the  person  or  estate  of  such  minor.®  A 
minor  is  a  person  of  either  sex  under  age — one  who  is  not 
permitted  by  law  to  govern  himself  or  to  make  contracts 
and  manage  his  own  estate.  By  the  laws  of  England,  and 
of  the  United  States  generally,  persons  are  minors  until 
they  are  twenty-one  years  of  age,  but  in  Missouri  males 
of  the  age  of  twenty-one,  and  females  of  the  age  of  eighteen 
years  are  of  full  age  for  all  purposes,  and  until  those  ages 
are  attained  they  are  minors,  except  as  otherwise  provided 
by  law.' 


5  Rev.   St.  1909,  §§  408,  409;    In  re  Grimes'  Estate,  79  Rio.  App. 
274 ;   Brewer  v.  Gary,  148  Mo.  App.  193,  127  S.  W.  689. 
e  Rev.  St.  1909,  §  406.  7  Rev.  St.  1909.  §  402. 

Kel.Mo.P.G.— 30 


4G6  APPOINTMENT   OF  GUARDIANS  §  451 

§  451.  Who  May,  and  Who  May  Not,  be  Guardians  or 
Curators. — In  Missouri,  the  person  over  whom  a  guardian 
or  curator  is  appointed  must  be  an  infant,  and  the  person 
appointed  must  be  capable  of  performing  the  duties,  and 
must  not  be  otherwise  disquaHfied ;  therefore,  an  infant, 
or  idiot  or  person  of  unsound  mind,  cannot  be  appointed 
guardian  or  curator.  All  guardians  and  curators  appointed 
by  the  court  must  be  twenty-one  years  of  age,  and  a  resi- 
dent of  the  state ;  for  no  person  other  than  a  resident  can 
be  appointed  a  guardian  or  curator,  and  if  a  guardian  or 
curator  remove  from  the  state,  his  appointment  will  be  re- 
voked.'* Ndi"  can  a  married  woman  be  guardian  or  curator 
of  the  estate  of  a  minor ;  and  if  a  woman  after  her  appoint- 
ment, marry,  the  marriage  will  operate  as  a  revocation  of 
her  appointment;  but  she  may  be  guardian  of  the  person  of 
a  minor  and  her  marriage  will  not  revoke  her  appointment 
or  authority."  No  clerk,  sheriff,  or  probate  judge  shall  be 
appointed  a  guardian  or  curator  in  the  county  where  he 
resides;  nor  shall  any  judge,  clerk  of  a  court  of  record, 
sheriff,  or  deputy  of  either,  or  attorney  at  law,  be  taken  as 
surety  for  any  guardian  or  curator;  ^"^  nor  shall  a  minor  be 
committed  to  the  guardianship  of  a  person  of  religious  per- 
suasion different  from  that  of  the  parents,  or  of  the  surviving 
parent  of  the  minor,  if  another  suitable  person  can  be  ob- 
tained, unless  the  minor,  being  of  proper  age,  should  so 
choose. ^^ 

§  452.  For  Whom  and  Under  What  Circumstances  to 
be  Appointed. — The  jurisdiction  of  a  probate  court  to  ap- 
point a  guardian  or  curator  is  determined  by  the  domicile 
of  the  minor,  and  such  domicile  is  a  matter  in  pais,  which 
the  probate  court  must  find  as  a  fact  in  order  to  support 
its  jurisdiction  to  make  such  appointment.^-  The  domicile 
of  a  ward  under  fourteen  years  of  age  is  not  changed  by 
the  guardian  removing  him  to  another  county,  and  in  case 
of  the  death  of  such  guardian  the  probate  court  of  the  county 

^  Itev.  St.  lyoa,  §  418 ;  State,  to  Use  of  Wolf,  v.  Engelke,  0  Mo. 
A  pp.  .356. 

9  Kev.  St.  lOOn,  §  417;    Carr  v.  Spaiinagel,  4  Mo.  App,  284. 

10  Rev.  St.  1909,  §  419. 

11  Rev.  St.  3909,  §  420;  Voiillaire  v.  Voullaire,  45  Mo.  602;  In  re 
Doyle,  16  Mo.  App.  159;  Brewer  v.  Gary,  148  Mo.  App.  193,  127  S. 
\V.  685. 

12  Smith  V.  Young,  136  Mo.  App.  65,  117  S.  W.  628. 


452  APPOINTMENT   OF   GUARDIANS 


4G7 


in  which  the  ward's  parents  resided  has  jurisdiction  to  ap- 
point a  successor,  and  not  the  court  at  the  place  where 
guardian  died."  Ordinarily  the  ])lace  where  the  parents 
reside  or  where  they  die  is  the  domicile  of  their  minor  chil- 
dren.^* 

The  probate  court  of  the  county  of  the  minor's  domicile 
must  appoint  guardians  to  minors  under  the  age  of  fourteen 
years,  and  admit  those  over  that  age  to  choose  guardians 
for  themselves  subject  to  the  approval  of  the  court.  Such 
courts  may  appoint  guardians  of  minors  having  no  parents 
living,  or  whose  parents  are  unfit  or  incompetent  for  the 
duties  of  guardians,  and  may  also  appoint  guardians  or  cura- 
tors of  minors  who  are  deaf  and  dumb  and  over  the  age  of 
fourteen  years.  Unfitness  or  incompetency  of  parents,  after 
ten  days'  notice  to  the  parents,  must  be  decided  by  the 
judge,  or  by  a  jury,  if  one  be  demanded.  They  may  also  ap- 
point a  guardian  or  curator  of  the  person  or  estate  of  a 
minor  whose  father  is  imprisoned  in  the  penitentiary  of  the 
state,  and  such  guardian  or  curator  will  have  the  same  power 
and  control  over  the  person  or  estate  of  such  minor,  as  if 
such  father  was  dead ;  but  the  mother  of  such  minor  cannot 
be  deprived  of  her  rights  as  the  natural  guardian  of  such 
child,  and  the  authority  of  such  guardian  or  curator  will 
not  continue  after  the  discharge  of  the  father  from  imprison- 
ment, unless  he  consents  thereto.^ ^ 

It  is  the  duty  of  any  judge  of  a  county  court,  justice  of 
the  peace,  sheriff  or  constable,  having  knowledge  of  any 
minor  within  his  county  who  has  no  legal  or  natural  guar- 
dian to  communicate  the  fact,  with  the  name  and  usual  resi- 
dence of  such  minor,  by  a  report  in  writing  to  the  probate 
court  or  judge  in  vacation,  and  the  court  must  thereupon 
proceed  to  appoint  a  guardian  for  such  minor.^^ 

And,  when  it  appears  to  the  court  or  judge  in  vacation, 
that  a  minor  over  the  age  of  fourteen  has  no  guardian,  the 
court  or  judge  must  issue  a  notice  to  such  minor  to  appear 
before  it,  at  a  time  stated,  to  choose  a  guardian,  or  that  one 
will  be  appointed  ;    and  if  such  minor,  on  ten  days'  notice 
shall  neglect  or  refuse  to  appear,  or  to  choose  a  guardian 
after  appearing,  the  court  or  judge  must  appoint  one  accord- 
is  State  ex  rol.  Brebaufj;h  v.  Bolte,  T2  Mo.  1204. 
14  De  Jarnett  v.  Ilariier.  45  Mo.  App.  415. 
10  Rev.  St.  1900,  §§  400,  407.  lo  Kev.  St.  1900,  §  410. 


468  APPOINTMENT   OF  GUARDIANS  §  452 

ing  to  law,  as  if  such  minor  was  under  the  age  of  fourteen 
years.^^    The  notice  may  be  as  follows: 

Notice  to  Minor  to  Appear  and  Choose  a  Guardian 
State  of  Missouri, 


County  of 


[ss. 


To  George  Rea: 

It  appeariug  to  tlie  court  (or  judge  in  vacation)  that  you  are  a 
minor  over  tlie  age  of  fourteen  years,  and  that  you  are  without  any 
legal  or  natural  guardian,  you  are,  therefore,  notified  to  appear  lie- 
fore  the  court  of  said,  county,  on  the day  of  the  next 

term  thereof,  to  be  held  at  — on  the day  of ,  19 — , 

to  choose  for  yourself  a  guardian,  and  should  you  neglect  or  refuse  to 
appear  or  to  choose  a  guardian  after  appearing,  the  court  or  judge 
will  appoint  one  for  you,  according  to  law. 

Given  under  my  hand,  etc.  J.  R.  C, 

(Style  of  office.) 

If  the  minor  appears  and  chooses  a  guardian  and  the  court 
or  judge  is  satisfied  that  the  person  chosen  is  suitable  and 
competent,  it  will  appoint  him,  but  if  such  choice  is  not  ap- 
proved by  the  court,  it  will  appoint  a  competent  and  suitable 
person  to  be  such  guardian,  in  the  same  manner  as  if  the 
minor  was  under  fourteen  years  of  age.^^ 

§  453.  Selection  of  a  Curator. — Where  a  minor  is  enti- 
tled to  or  possessed  of  an  estate,  not  derived  from  the  par- 
ent, who  is  the  natural  guardian  at  the  time,  and  it  shall  be 
suggested  to  the  court  or  judge  in  vacation,  that  such  par- 
ent is  incompetent  to  the  care  of  such  estate  or  is  misman- 
aging or  wasting  it,  the  court  or  judge  may  issue  a  notice 
to  such  parent  to  appear  before  it,  at  a  time  stated,  and 
show  cause  why  a  curator  should  not  be  appointed  or  cho- 
sen ;  and  if  o^  ten  days'  notice,  no  sufficient  cause  be  shown, 
the  court  or  judge  will  appoint  a  curator  for  the  manage- 
ment of  such  estate  for  the  minor,  if  under  fourteen  years, 
of  age,  or,  if  over  that  age,  admit  the  minor  to  choose  one, 
subject  to  the  approval  of  the  court,  as  in  the  case  of  minors 
over  that  age.^''^  If  the  court  or  judge  shall  be  satisfied  that 
it  will  be  for  the  advantage  of  minors  to  appoint  a  curator 
of  the  estate,  different  from  the  guardian  of  the  person,  it 
shall  be  lawful  to  make  such  separate  appointment  for  mi- 

17  Rev.  St.  1909,  §  411. 

18  Rev.  St.  1909,  §  412 ;  State  ex  rel.  Finger  v.  Reynolds,  121  Mo. 
App.  609,  97  S.  W.  mo. 

19  Rev.  St.  1909,  §  401. 


§  455  APPOINTMENT   OF   GUARDIANS  469 

nors  under  the  age  of  fourteen,  and  to  allow  those  over  that 
age  to  make  such  separate  choice,  subject  to  the  approval  of 
the  court.-"  Thus  it  will  be  seen  that  there  may  be  a  guard- 
ian of  the  person  and  also  a  guardian  of  the  estate  of  the 
minor,  called  a  curator,  or  the  same  person  may  be  guardian 
both  of  the  person  and  estate  of  the  minor. 

If  a  minor  residing  without  the  state  has  an  estate  within 
the  state,  the  court  of  the  county  in  which  the  estate,  or 
part  of  it,  may  be,  may  appoint  some  suitable  person  as  a 
curator  of  the  estate  of  such  minor,  and  the  appointment 
first  made  will  extend  to  all  the  estate  of  such  minor  within 
this  state,  and  will  exclude  the  jurisdiction  of  every  other 
court. -^ 

§  454.  When  Minor  May  Select  Another. — A  minor  hav- 
ing a  guardian  or  curator  appointed  by  the  court,  upon  at- 
taining the  age  of  fourteen  years  may  choose  another  guard- 
ian or  curator,  before  the  proper  court  or  judge  thereof,  in 
the  county  of  the  minor's  residence ;  and  if  the  court  or 
judge  is  satisfied  that  the  person  chosen  is  suitable  and  com- 
petent, the  appointment  shall  be  made  accordingly.^^  A 
curator  of  the  estate  of  a  resident  minor  cannot  be  appoint- 
ed by  the  probate  court  of  a  county  in  which  such  minor 
does  not  reside.^'  Every  appointment  of  a  guardian  must 
specify  whether  it  be  of  the  person  of  his  ward,  or  his  per- 
son and  estate.^* 

§  455.  The  Public  Administrator  is  by  statute  made  ex- 
officio  public  guardian  and  will  take  charge  of  all  estates  of 
minors  that  may  by  order  of  the  probate  court  be  placed  in 
his  charge,  and  in  such  cases  will  be  known  and  designated 
as  public  guardian.-^ 


20  Rev.  St.  1900.  5  41.3;    Garrison  v.  Lyle,  38  Mo.  App.  558. 

21  Rev.  St.  1909.  §  414;    Garrisou  v.  Lyle,  38  Mo.  App.  5oS. 

22  Rev.  St.  1909.  §  415;  State  ex  rel.  Mills  v.  Mast,  104  Mo.  App. 
348,  78  S.  W.  833;  Garrison  v.  Lyle.  38  Mo.  App.  558;  Smith  v. 
Younfr.  136  Mo.  App.  65,  117  S.  W.  628 ;  In  re  Looney's  Estate,  112 
Mo.  App.  195.  86  S.  W.  564. 

23  Lacy  V.  Williams,  27  Mo.  280;  Garrisou  v.  Lyle,  38  Mo.  App. 
558. 

24  Rev.  St.  1909.  §  421 ;  Reppstein  v.  St.  Louis  Mut.  In.<.  Co..  51 
Mo.  481. 

2-.  Rev.  St.  1909,  §  464;  State  ex  rel.  Mills  v.  Mast,  104  Mo.  App. 
348,  78  S.  W.  8.33. 


470  APPOINTMENT   OF   GUARDIANS  §  456 

§  456.  Appointment,  How  Made. — The  statute  does  not 
expressly  require  any  petition  or  statement  of  the  nature 
and  amount  of  the  estate  of  the  minor  to  be  filed  by  the  ap- 
plicant for  guardianship  in  order  to  give  validity  to  his  ap- 
pointment, but  the  court  or  judge  makes  the  appointment 
on  information  received,  from  any  reliable  source,  in  rela- 
tion to  the  same.  For  convenience  the  following  form  of 
statement  by  the  applicant  for  appointment  is  given,  though 
it  is  not  deemed  essential,  under  the  statute,  to  the  appoint- 
ment. 

Application  for  Curatorship  by  a  Father 

State  of  Missouri,     |  _ 

County  of  .  j 

To  tlie  Probate  Court  of  County: 

The  petition  of  tlie  undersigned,  A.  B.,  respectfully  represents: 

That  he  is  a  resident  of  the  county  of aforesaid,  and  is  the 

father  of  C.  B.,  aged —  years months ;    E.  B.,  aged 

years  —  months,  and  W.  B.,  aged  years months ; 

that  said  minors  own  property  not  derived  from  him  and  not  ex- 
ceeding in  value  the  sum  of ■ —  dollars. 

Wherefore  he  prays  that  he  may  be  appointed  curator  of  the  es- 
tates of  said  minors.  A.  B. 

The  above-named  A.  B.,  being  duly  sworn,  on  his  oath  says  that 
the  matters  and  facts  set  forth  in  the  foregoing  petition  are  true  to 
the  best  of  his  knowledge,  information  and  belief.  A.  B. 

Sworn  to  and  subscribed  before  me,   this  day   of  , 

19—.  L.  W.,  Clerl£. 

Application  for  a  Curatorship  by  a  Mother 

State  of  Missouri,     ] 

County  of  .  ( 

To  the  Probate  Court  of —  County: 

The  petition  of  the  undersigned,  F.  B.,  respectfully  represents: 

That  she  is  a  resident  of  the  county  of  aforesaid,  and  is 

the  mother  of  C.  B.,  aged  years  months;    E.  B.,  aged 

—  years  months,  and  W.   B.,  aged  years  

months ;    that  said  minors  own  property  not  derived  from  her  and 

not  exceeding  in  value  the  sum  of  dollars ;    that  A.   B.,  the 

father  of  said  minors,  died  in  the  year  19 — ,  and  was  at  the  time  of 

his  death  a  resident  of  said  county  of ,  and  that  she,  the  said 

petitioner,  is  unmarried. 

Wherefore  your  petitioner  prays  that  she  may  be  appointed  cura- 
trix  of  the  estates  of  said  minors.  F.  B. 

The  above-named  F.  B.,  being  duly  svi'orn,  on  her  oath  says  that 
the  matters  and  facts  set  forth  in  the  foregoing  petition  are  true 
to  the  l)est  of  her  Icnowledge,  information  and  belief.  F.  B. 

Sworn   to  and  subscribed  before  me,   this  day  of  , 

19—.  L.  W.,  Clerk. 


§  456  APrOINTMENT   OF   GUARDIANS  ^71 

Application  for  Guardianship   J V here  There  are  No  Parents 

Living 
State  ol'  Missouri,      [ 

County  of  .  J 

To  tlu'  I'robate  Court  of Coiuity: 

The  petition  of  the  undersigned,  G.  H.,  respectfully  represents: 

Tliat  C.  B.,  aged  years  mouths ;    E.  B.,  aged  ■ 

years  months,  and  W.  B.,  aged  years  months, 

are  minors  resident  in  the  county  of  — having  no  parents  liv- 
ing; that  the  mother  [or,  father,  as  the  case  may  be]  was  the  sur- 
viving parent,  and  died  on  or  about  the  day  of  ,  19     , 

and  was  a  resident  of  the  county  aforesaid  at  the  time  of  her  death; 

that  said  minors   are  now  and  liave  been   during   the  last  

months  under  the  charge  of  L.  M. ;  that  said  minors  own  property 
not  exceeding  in  value  the  sum  of  dollars. 

Wherefore  your  jietltioner  prays  that  he    [or  such  person  as  he 
suggests]  may  be  appointed  guardian  of  the  persons  and  estates  of 


said  minors. 


G.  H. 


The  above-named  G.  H.,  being  duly  sworn,  on  his  oath  says  that 
the  matters  and  facts  set  forth  in  the  above  petition  are  true  to  the 
best  of  his  knowledge,  information  and  belief.  G.  II. 

Sworn  to  and  subscribed  before  me,  this  day  of  , 

19_  L.  W.,  Clerk. 

CertiUcate  of  Guardianship 

state  of  Missouri,     ]  ^^ 

County  of  .  | 

I,  L.  M.,  clerk  of  the  probate  court  within  and  for  the  county  of 

! ,  in  the  state  of  Missouri,  do  hereby  certify  that  A.  B.  was,  on 

tlie  — day  of  ■ ,  A.  D.  19—,  duly  appointed  by  said  court 

[or,  by  T.  W.,  judge  of  said  court]  guardian  [or,  curator]  of  C.  B., 

ajred  years  months.  E.  B.,  aged  years  

months,  and  W.  B.,  aged years months;   and  the  said 

A.  B.  having  qualified  and  given  bond  as  such  guardian  [or,  curator] 

in  the  sum  of  dollars,  is  duly  authorized  and  empowered  to 

take  upon  himself  the  performance  of  the  duties  of  the  trust  of  such 
guardianship  according  to  law,  as  appears  by  the  records  of  said 
court  in  my  said  office  remaining. 

In  witness  whereof  I  hereunto  set  my  hand  and  affix  the  seal  of 

said  court,  at  office,    in  the  of  ,  in  said  county,   this 

day  of ,  10—.  L-  M-  Clerk. 

If  the  minor  is  a1)Ove  the  age  of  fourteen  years  he  should 
be  notified  by  the  court  or  judge  in  vacation  to  appear  be- 
fore it  at  the  stated  time  and  choose  a  guardian,  and  if  he 
fail  to  do  so,  the  appointment  may  be  made  without  regard 
to  his  wishes  in  the  premises.  The  minor,  it  is  supf)osed. 
may  designate  his  choice,  by  writing  or  otherwise,  without 
api^earing  before  the  court,  and  if  a  suitable  person  be  cho- 
sen, the  "court  should  make  the  appointment  accordingly. 


472  APPOINTMENT   OF   GUARDIANS  §  456 

The  appointment  of  a  guardian  or  curator  made  in  open 
court  in  term  time,  or  by  the  judge  or  clerk  in  vacation, 
should  be  entered  of  record  in  the  order  book  of  the  court. 
If  made  in  vacation  the  order  should  show  its  approval  by 
the  court. -^ 

The  entry  may  be  as  follows: 

Appointment  of  Guardian 

In  the  matter  of  the  estate  of  ] 

Oliver  Roe,   minor   heir   of  lAppointuieut  of  Guardian. 

John  Roe,  deceased.  J 

On  this  day  appeared  in  open  court  (or  before  the  judge)  Oliver 
Roe,  and  it  appearing  to  the  court  or  .ludge  that  he  is  a  minor  under 
twenty-one,  but  above  fourteen  years  of  age,  and  is  a  resident  of  the 

county  of ,  and  has  no  legal  or  natural  guardian ;    and,  being 

directed  by  the  court  or  judge  to  choose  a  guardian  of  his  person 
(and  estate),  he  selected  John. Doe,  who  being  approved  by  the  court 
(or  judge),  is  appointed  guardian  of  the  person  (and  estate)  of  said 
Oliver  Roe,  subject  to  the  approval  of  tlie  court;  and  before  entering 
upon  the  duties  of  his  office  he  is  required  to  enter  into  bond  to 

the  state  of for  the  use  of  said  Oliver  Roe,  with  two  or  more 

securities,  to  be  approved  by  the  court,  in  the  sum  of • —  dollars, 

conditioned  for  the  faithful  discharge  of  his  duties  according  to  law. 

And  now  conies  the  said  John  Doe  and  accepts  such  appointment, 

and  files  his  bond  in  the  sum  of  dollars,  with  —  and 

as  sureties,  which  is  by  the  court  now  here  approved,  and 

the  said  John  Doe  qualities  according  to  law  and  enters  upon  the 
duties  of  his  trust  as  such  guardian. 

This  form  is  sufficient  to  indicate  the  form  of  entry  in  any 
case  of  the  appointment  of  a  guardian  or  curator.  It  is  not 
necessary  that  the  order  of  appointment  should  name  the 
minors,  or  set  out  their  names. ^^  They  may  be  designated 
as  the  minor  children  of  the  parent  named,  and  their  names 
may  appear  in  the  bond. 

The  statute  makes  no  provision  for  issuing  letters  of 
guardianship  on  the  appointment  of  a  guardian.  But  it  de- 
clares that  every  appointment  of  a  guardian  shall  specify 
whether  it  be  of  the  person  of  the  ward,  or  his  person  and 
estate  and  a  copy  of  the  order  of  his  appointment  duly  cer- 
tified under  the  seal  of  the  probate  court,  shall  be  prima 
facie  evidence  of  the  facts  therein  stated  in  all  courts  of  law 
in  the  state.-*    The  court,  if  requested,  should  issue  and  de- 

26  Garrison  v.  Lyle,  38  Mo.  App.  558. 

27  Reppstein  v.  St.  Louis  Mut.  Ins.  Co.,  51  Mo.  481. 

28  Rev.  St.  1909,  §  421;  Garrison  v.  Lyle,  38  Mo.  App.  558;  Repp- 
stein V.  St.  Louis  Mut.  Ins.  Co.,  51  Mo.  481. 


§  457  APrUINTMENT   OF   GUARDIANS  473 

liver  to  the  guardian  a  copy  of  the  order  of  his  appointment 
duly  certified  under  the  seal  of  the  court,  which  will  answer 
the  purpose  and  perform  tlie  office  of  letters. 

Letters  of  Guardia>iship,  or  Curatorship 

State  of  Missouri,       ) 

Count V  of  l^^*  ^"  ^^^  Probate  Court  at . 

The  .State    of  Missouri,  to  all  Persous  to  whom  these  Presents  shall 
eonifc,  Greeting: 

Know  ye,    that  whereas   A.    B.,   a   minor  and   resident  of  

county,  Missouri,  and  a  child  and  heir  of  E.  G.,  deceased,  late  of 

county,  ^Missouri,  and  C.  F.,  deceased,  late  of  county, 

state  of  Missouri,  and  said  minor  has  no  natural  guardian  and  is 
possessed  of  an  estate  and  has  no  legally  appointed  custodian  there- 
for. 

To  the  end,  therefore,  that  the  estate  of  said  minor  may  be  col- 
lected and  preserved  for  his  use  and  benefit,  and  that  the  educa- 
tion, care  and  maintenance  of  said  minor  may  be  properly  provided 
for, 

We  do  hereby  appoint  X.  Y.  as  guardian  of  the  person  and  estate 
of  said  A.  B.,  and  charge  said  X.  Y.  with  the  custody  and  care  of 
the  person  and  education  of  said  minor,  and  with  full  power  and 
authority  to  collect  and  secure  or  take  charge  of  any  and  all  prop- 
erty, of  every  kind  and  character,  belonging  to  said  minor,  and  to 
manage  and  dispose  of  said  property  according  to  law. 

In  witness  whereof.  T,  ,  clerk  of  the  probate  court,  within 

and  for  the  county  aforesaid,  have  hereunto  set  my  hand  and  aftixed 

the  seal  of  .said  probate  court  at  office  in  ,  Missouri, 

this day  of ,  19—.  ,  Clerk. 

State  of  Missouri,      1 

County  of  .  j^^- 

I, ,  clerk  of  the  probate  court,  within  and  for  the  county  and 

state  aforesaid,  do  hereby  certify  that  the  foregoing  letters  of  guard- 
ianship or  curatorship  were  duly  recorded  in  my  otEce  on  the 

day  of  ,  A.  D.  19 — ,  in  I?ook  ,  page  ,  before  de- 
livery. 

In  testimony  whereof,  I  have  hei'eunto  set  my  hand  and  affixed 

the  seal  of  said  court  at  office  in  ,  this ■ —  day  of  , 

A.  D.  19—.  ,  Clerk. 

§  457.  The  Bond  in  Missouri. — All  guardians  and  cura- 
tors appointed  by  the  court  or  judge  in  vacation,  or  chosen 
by  minors  under  the  sanction  of  the  court  or  judge,  must 
respectively,  before  entering  on  the  duties  of  their  office, 
give  bond,  with  two  or  more  securities  who  shall  own  prop- 
erty after  deducting  all  liabilities  and  exemptions  of  double 
the  value  of  such  estate,  to  be  approved  by  the  court  oi 
judge  appointing  them,  to  the  state  of  Missouri,  for  the  use 
of  the  minors  respectively,  in  double  the  value  of  the  estate 
or  interest  to  be  committed  to  their  care,  conditioned  for 


474  APPOINTMENT   OF    GUARDIANS  §  457 

the  faithful  discharge  of  their  duties  according  to  law;  and 
the  court  or  judge  has  power  to  order  them  to  give  supple- 
mental security,  or  a  new  bond,  with  sufficient  security,  up- 
on like  notice,  for  the  causes,  in  the  same  manner  and  with 
like  effect  as  is  authorized  by  law  in  the  case  of  administra- 
tors, and,  in  default  thereof,  or  for  other  good  cause  remove 
them,  and  appoint  or  admit  the  choice  of  others  in  their 
stead. 2^  The  clerk  of  said  court  must  record  in  a  well- 
bound  book,  all  bonds  given  by  guardians  and  curators,  and 
preserve  the  originals  in  regular  files,  as  in  the  case  of  bonds 
of  executors  and  administrators.  The  probate  courts  are 
allowed  a  liberal  discretion  over  the  removal  of  guardians.^" 

Form  of  Bond  of  Guardian  or  Curator . 

We,  John  Doe,  as  principal,  and  Jolin  Flinn  and  James  Glenn,  as 
securities,   acknowledge  ourselves  to   owe   and  be   indebted   to  the 

state  of  for  the  use  of  Oliver  Roe,   in  the  sum  of  

[double  the  estimated  value  of  the  estate]  dollars,  for  the  payment 
of  which  we  bind  ourselves  firmly  by  these  presents. 

The  condition  of  the  above  obligation  is  such  that,  whereas,  the 
said  John  Doe  has  been  appointed  by  the  probate  court  the  guard- 
ian of  the  person  (and  estate)  [or  curator  of  the  estate]  of  Oliver 

Roe,  of  said  county  of -,  a  minor  under  the  age  of  twenty-one 

years. 

Now,  if  the  said  John  Doe  shall  faithfully  discharge  his  duties 
as  such  guardian  (or  curator)  according  to  law,  this  bond  shall  be 
void,  otherwise  shall  remain  in  full  force  and  effect. 

Witness  our  hands,  etc.  JOHN  DOE.  [Seal.] 

JOHN  FLINN.         [Seal.] 
JAINIES  GLENN.     [Seal.] 

Taken  and  approved  this • —  day  of ,  19—,  and  I  certify 

that  the  same  was  signed  by  the  parties  in  my  presence. 

P.  MERCER, 
Probate  Judge. 

The  guardian  must  take  an  oath  of  the  same  tenor  as  the 
condition  of  the  bond.  ^ 

Guardian's  Oath 

State  of ,         ] ,, 

County  of 


I,  ,  do  solenuily  swear  that  I  will  faithfully  discharge  the 

duties  of  guardian  of  the  person  and  estate  of  ,  a  minor,  to 

the  best  of  my  ability,  so  help  me  God.  • 

Sworn  to  and  sul)scribed  before  me  this day  of ,  19 — . 

Probate  Judge. 

2  9  Rev.  St.  1009,  §  424;    Duncan  v.  Crook,  49  Mo.  116;    Exendine 
V.  Morris,  8  Mo.  App.  383 ;    Ormiston  v.  Trumbo,  77  Mo.  App.  310. 

3  0  King  v.  King,  73  Mo.  App.  78. 


§  458  APPOINTMENT    OF    CJUARDIANS  475 

§  458.  Transfer  of  Guardianship. — If  the  court  in  which 
a  guardian  or  curator  is  appointed  for  a  minor  after  he  at- 
tains the  age  of  fourteen  years  is  in  a  county  different  from 
that  in  which  the  former  appointment  was  made,  the  newly 
appointed  guardian  or  curator  must  present  to  the  court  in 
which  the  proceedings  of  the  former  guardianship  or  cura- 
torship  were  had,  a  copy  of  the  order  of  his  appointment, 
whereupon  the  court  will  order  the  guardian  or  curator 
theretofore  appointed  to  appear  before  said  court  at  the 
next  regular  term,  if  it  is  to  be  held  as  much  as  ten  days 
after  said  copy  is  so  presented,  or  if  it  begin  within  ten  days, 
then  at  the  next  regular  or  adjourned  term  thereafter,  and 
make  final  settlement  of  said  estate  and  the  court  must  noti- 
fy the  guardian  or  curator  last  appointed  of  the  time  and 
place  where  said  final  settlement' will  be  made,  and  upon 
such  settlement  being  made,  the  court  will  order  the  guard- 
ian or  curator  to  pay  over  and  deliver  to  his  successor  all 
the  balances  due,  and  all  the  property  rights  and  evidences 
of  title,  and  order  a  removal  of  the  proceedings  to  the  county 
in  which  said  guardian  or  curator  was  chosen  and  a  tran- 
script of  the  proceedings  to  be  furnished,  and  the  receipt  of 
the  latter  guardian  or  curator  will  be  a  sufficient  voucher 
for  so  much  to  the  former  one  in  the  settlement  of  his  ac- 
counts. The  court  to  wdiich  such  removal  is  made  will  take 
jurisdiction  of  the  case,  place  the  transcript  of  record  and 
proceed  to  the  final  settlement  of  the  case.  If  the  former 
curator  shall  not  within  thirty  days  after  his  final  settle- 
ment, turn  over  the  property,  money  and  effects  found  to  be 
due  the  ward  to  his  successor,  the  court  must  proceed 
against  him,  and  his  sureties,  as  provided  by  law  in  case  of 
final  settlements  of  administrators." 

81  Rev.  St.  1909,  §  416;    Marheineke  v.  Grothaus,  72  Mo.  204. 


476  POWERS  AND  DUTIES  §  459 

CHAPTER  XXXVII 
GENERAL  POWERS  AND  DUTIES  OP  GUARDIANS 

§  459.  The  guardian  is  entitled  to  custody  and  control  of  ward. 

460.  Same — Habit  of  industry  to  be  enforced. 

461.  Management  of  ward's  estate. 

462.  Prosecute  and  defend  for  ward. 

463.  Tbe  guardian  must  collect  and  control  ward's  estate. 

464.  Duties  of  guardian. 

§  459.  Custody  and  Control  of  Ward — Education  and 
Support. — The  guardian  of  the  person,  whether  natural  or 
legal,  is  entitled  to  the  charge,  custody  and  control  of  the 
person  of  his  ward,  and  the  care  of  his  education,  support 
and  maintenance;  the  curator  has  the  care  and  manage- 
ment of  the  estate  of  the  minor,  subject  to  the  superintend- 
ing control  of  the  court;  and  the  guardian  of  the  person 
and  estate  of  a  minor  has  all  the  powers  and  performs  all 
the  duties  both  of  a  guardian  of  the  person  and  curator.^ 
After  his  appointment  the  guardian  is  considered  as  stand- 
ing in  the  place  of  the  father,  and  the  relative  duties  of 
guardian  and  ward  correspond,  in  a  great  measure,  to  those 
of  parent  and  child,  with  this  difference:  The  father  is  en- 
titled to  the  services  of  the  child,  and  is  bound  to  support 
it ;  the  guardian  is  not  entitled  to  the  services  of  the  ward, 
and  is  not  bound  to  maintain  it  out  of  his  own  estate.  It 
is  the  duty  of  a  guardian  to  support  his  ward  in  a  manner 
commensurate  with  his  condition  in  life  and  the  income  of 
his  estate.  He  must  guard  the  ward  against  improper  and 
pernicious  associations,  give  him  advice,  and  endeavor  to 
direct  him  in  the  formation  of  his  character.  He  must  at- 
tend to  the  education  of  his  ward,  keeping  in  view  his  fu- 
ture mode  of  life,  as  well  as  the  means  and  extent  of  his 
estate,  and  provide  him  tuition  and  the  usual  means  of  edu- 
cation. 

The  court  will  order  the  proper  education,  support  and 
maintenance  of  minors  according  to  their  means,  and  from 
time  to  time  will  make  the  necessary  appropriations  out  of 
the  ward's  personal  estate  or  income,  and  if  that  be  insuf- 
ficient or  not  applicable  to  that  purpose,  the  court  may  or- 

1  Rev.  St.  1909,  §  422. 


§  461  POWERS    AND    DUTIES  477 

der  the  lease  or  sale  of  the  real  estate  of  the  ward's  or  that 
it  be  mortgaged  for  that  purpose. - 

§  460.  Same — Habits  of  Industry  must  be  enforced  as 
far  as  practicable,  and,  if  necessary  or  advisable,  the  ward 
should  be  taught  a  good  trade  or  trained  in  some  useful  pur- 
suit. The  rule  of  law  is,  that  guardians  must  keep  their 
'wards  employed  to  earn  their  own  support,  rather  than  to 
permit  them  to  consume  in  idleness  the  principal  of  their 
patrimony.  But  if  the  ward  is  physically  unable  to  earn 
his  support,  or  cannot  do  it  without  encroaching  upon  the 
time  that  should  be  devoted  to  acquiring  a  good  English 
education,  and  the  ward  has  property,  the  guardian  may,  and 
should,  if  necessary,  use  the  principal  of  his  estate  for  the 
support  and  education  of  the  ward.  But  in  such  case,  he 
should  first  apply  to  the  proper  court,  and  procure  its  sanc- 
tion for  the  expenditure.^  The  guardian  is  not  bound  to 
maintain  his  ward  at  his  own  expense,  except  he  be  the  fa- 
ther; and  whatever  expense  he  necessarily  incurs  for  the 
ward's  maintenance,  he  must  be  reimbursed  out  of  the 
ward's  estate.*  But  where  the  ward  resides  with  the  guard- 
ian and  is  capable  of  earning  his  support,  and  the  guardian 
neglects  to  provide  employment,  but  without  any  authority 
encroaches  upon  the  principal  of  the  estate,  the  court  will 
not  allow  his  claim  therefor.^ 

§  461.  Management  of  Ward's  Estate. — The  guardian 
must  manage  the  estate  for  the  best  interest  of  the  ward. 
His  obligation  is  one  of  duty  and  trust  rather  than  one  of 
speculation  and  profit.  He  cannot  have  any  personal  in- 
terest in  the  estate,  and  is  not  permitted  to  deal  in  the  prop- 
erty of  the  ward,  nor  can  he  have  dealings  with  the  ward, 
nor  buy  at  his  own  sale  of  the  ward's  property.*'  And  a  gift. 
grant  or  donation  obtained  by  parent  from  child,  or  guardian 
from  ward,  is  watched  by  courts  with  the  most  scrutinizing 
jealousy,  and  generally  held  to  be  presumptively  void."    The 

2  Rev.  St.  1909.  §  4:^,0 ;  Robert  v.  Casey,  25  Mo.  584 ;  State  v.  Slev- 
in,  93  Mo.  1253,  6  S.  W.  68,  3  Am.  St.  Rep.  526;  Buie's  Estate  v. 
White,  94  Mo.  App.  367,  68  S.  W.  101. 

3  State  ex  rel.  Druliner  v.  Clark,  16  lud.  97. 
*  Reeves,  Dom.  Rel.  324. 

0  Foteaux  v.  Ix»page,  6  Iowa,  123. 

6  Real  V.  Ilaruiou,  38  Mo.  435 ;  Patterson  v.  Booth,  103  Mo.  403, 
15  S.  W.  543. 

7  Garvin's  Adm'r  v.  Williams,  44  Mo.  405,  100  Am.  Dee.  314. 


478  POWERS    AND    DUTIES  §  462 

reason  is,  that  the  opportunities  of  the  guardian  are  such 
that  he  can  take  advantage  of  the  tender  years,  inexperience, 
and,  perhaps,  confidence  of  his  ward,  and  obtain  his  assent 
to  a  contract  or  transaction  detrimental  to  his  interests — 
the-  very  interest  which  it  is  his  sacred  duty  to  protect  and 
foster;  hence  the  law  imposes  a  general  disability  upon  the 
parties  to  deal  with  each  other.^ 

§  462,  Prosecute  and  Defend, — In  Missouri,  all  guard- 
ians and  curators  must  represent  their  wards  in  all  legal 
proceedings,  sue  for,  demand  and  receive  all  their  dues,  give 
discharges  therefor,  and  compound  the  same  upon  such 
terms  as  may  be  authorized  by  the  court,  and  may  prosecute 
and  defend  for  their  wards  in  all  matters  committed  to  the 
care  of  such  guardians  and  curators,  respectively,  without 
further  admittance,  in  the  several  courts  of  this  state, **  The 
importance  of  this  duty  cannot  be  overestimated.  Suits  are 
brought  in  which  the  rights  of  minors  are  involved,  the 
minor  is  served  with  process  or  notified  by  publication  in  a 
newspaper,  and  is  so  far  afifected  by  the  proceedings  that 
the  court  appoints  a  guardian  for  the  occasion,  whose  whole 
duty,  in  a  vast  majority  of  cases,  is  discharged  by  a  formal 
answer  denying  the  pleading  of  the  opposite  party, ^'^  From 
that  point  no  one  cares  to  trouble  himself  in  behalf  of  the 
infant,  and  the  opportunity  is  afforded  the  unscrupulous  to 
defraud  him  out  of  his  property  or  rights.  The  guardian  ad 
litem  has  but  one  duty  to  perform,  and  that  is  to  defend  the 
action  or  guard  the  interests  of  the  minor. ^^  And  there  is, 
perhaps,  no  more  sacred  duty  than  that  of  a  guardian  touch- 
ing a  suit  against  his  ward.  He  should  neglect  nothing, 
take  nothing  for  granted,  and  should  not  listen  to  sugges- 
tions of  interested  parties,  but  should  consult  counsel,  and, 
if  need  be,  resist  the  action  or  proceeding.  If  a  defendant 
is  of  age  the  court  has  no  right  to  appoint  a  guardian  ad 
litem  and  it  is  error  to  do  so.^^ 

The  ward  is  a  necessary  party  defendant  where  title  to 
his  property  is  involved,  and  a  minor  should  be  sued  in  his 


8  Garvin's  Adm'r  v.  Williams,  44  Mo.  4G5,  100  Am.  Dec.  314. 
8  Rfv.  St.  1909,  §  42P.. 

10  Brenner  v,  Bigelow,  8  Kan.  498, 

11  McClure  v.  Farthinj?,  51  M(».  109. 

12  Patton  V,  Furtlimier,  10  Kan.  29. 


§  464  POWERS    AND    DUTIES 


479 


own  name  and  not  in  the  name  of  the  guardian  or  curator. 
The  guardian  or  curator  must  defend  the  action/^ 

§  463.  The  Guardian  Should  Collect  and  safely  invest  all 
moneys  due  to  his  ward.  The  rights  of  the  guardian  are 
necessarily  exclusive.  The  ward  cannot  dispose  of  his  prop- 
erty without  the  consent  of  the  guardian,  and,  if  he  does,  it 
is  the  duty  of  the  guardian  to  refuse  to  deliver  it  to  the 
purchaser,  and,  if  it  be  delivered,  he  may  reclaim  it.  When 
the  guardian  has  control  of  the  person  of  the  ward,  no  one 
has  a  right  to  interfere  with  his  authority  over  him,  or  to 
deprive  him  of  the  custody  of  his  person;  and  if  it  is 
usurped  or  withheld  by  another,  he  may  regain  the  custody 
of  his  ward  by  the  writ  of  habeas  corpus.  He  may  enforce 
obedience  upon  his  ward  to  his  reasonable  commands.  He 
may  bind  him  an  ajiprentice. 

§  464.  Duties  of  Guardian. — A  failure  to  comply  with 
any  order  of  the  court  in  relation  to  the  guardianship,  is 
deemed  a  breach  of  the  condition  of  the  guardian's  bond, 
which  may  be  put  in  suit  by  any  one  aggrieved  thereby,  for 
which  purpose  the  court  may  appoint  another  guardian  of 
the  minor,  if  necessary,  and  the  court  may  also  commit  him 
to  jail  until  he  complies  with  such  order. 

They  must  account,  on  oath,  annually,  or  oftener  if  re- 
quired by  the  court.  It  may  also  direct  them  to  give  new  or 
additional  security,  or  may  remove  them  for  good  cause 
shown,  which  cause  must  be  entered  on  the  records. 

When  a  new  guardian  is  appointed,  the  court  may  order 
the  efifects  of  the  minor,  which  are  in  the  hands  of  his  pred- 
ecessor, to  be  delivered  up  to  such  new  guardian. 

13  Webb  V.  Ilayden,  IGG  Mo.  loc.  cit.  50,  65  S.  W.  7G0;  Judson  v. 
Walker,  155  Mo. "loc.  cit.  170,  55  S.  W.  1083;  Payne  v.  Masek,  114 
Mo.  loc.  cit.  G36.  21  S.  W.  751 ;  Sieiert  v.  McAually,  223  Mo.  505,  122 
S.  W.   10G4,  1.^5  Am.  St.  Kep.  522. 


480  INVENTOEY  AND  APPBAISEMENT  §  465 

CHAPTER  XXXVIII 
INVENTORY  AND  APPRAISEMENT 

§  465.     Inventory. 

466.  Appraisement. 

467.  Concealed  or  embezzled  goods  or' effects,  how  recovered. 

§  465.  Inventory. — The  first  duty  of  a  guardian  or  cu- 
rator is  to  obtain  accurate  knowledge  of  the  estate  of  his  ward, 
and  to  get  it  under  his  control ;  and  then  to  make  a  true  in- 
ventory of  all  the  real  estate  and  of  all  the  goods  and  chattels, 
rights  and  credits  of  the  ward  that  shall  come  to  his  possession 
or  knowledge,  and  to  return  the  same,  verified  by  affidavit,  to 
the  probate  court,  at  the  first  term  after  such  estate  comes  to 
his  possession  or  knowledge.^  The  inventory  must  be  filed 
in  the  office  of  the  probate  court.  The  inventory  should  con- 
tain in  detail  a  list  of  all  the  estate  and  claims  belonging  to  the 
ward,  and  the  guardian  must  account,  either  for  its  value, 
where  he  has  parted  with  it  and  it  cannot  be  found,  or  for 
the  articles  themselves  when  they  are  in  his  hands.^  The 
following  form  may  be  used  as  an  inventory: 

Form  of  a  Guardian's  Inventory 

An  inventory  of  all  the  real  estate,  and  of  all  the  goods  and  chat- 
tels, rights  and  credits  of  Oliver  Roe,  minor  heir  of  John  Roe,  de- 
ceased: 

PERSONAL    ESTATE 

Money  received  of  N.  M.,  administrator  of  John  Roe,  de- 
ceased      $100  00 

One  horse,  received  of  said  administrator,  appraised  at....  120  00 

One  saddle  and  bridle,  etc.,  appraised  at 15  00 

EEAL    ESTATE 

Undivided  one-fifth  of  the   southeast  quarter   section   10   township 

59,  range  36,  160  acres,  situate  in  county,  state  of  . 

JOHN  DOE. 
Guardian. 

State  of ,        ) 

County  of  .J 

I,  John  Doe,  guardian  (or  curator)  of  the  person  and  estate  (or 
estate)  of  Oliver  Roe,  minor  heir  of  John  Roe,  deceased,  do  swear 

1  Rev.  St.  litiJI),  §  425;    Pattee  v.  Thomas,  58  Mo.  163. 

2  1  Bouv.  144 ;  Field  v.  SchiefEelin,  7  Johns.  Ch.  (N.  Y.)  150,  11 
Am.  Dec.  441. 


§  407  INVENTORY   AND   APPRAISEMENT  481 

that  the  ion-'^nln'^  is  a  true  and  perfect  inventory  of  all  the  real 
estate,  and  of  the  goods  and  cliattels,  rij,'hts  and  credits,  belonging 
to  the  said  Oliver  Koe,  so  far  as  the  same  have  come  to  my  pos- 
session or  Icnowledge.  JOHN  DOE, 

Guardian. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — • 

J.  R.  C, 
(Style  of  otlice.) 

§  466.  Appraisement. — Upon  taking  an  inventory,  the 
personal  estate  and  effects  inventoried  must  be  appraised  in 
the  same  manner  as  the  personal  estate  of  a  deceased  testator 
or  intestate  is  appraised  by  the  executor  or  administrator.^ 
And  the  inventories  and  affidavits  and  appraisements  of  per- 
sonal estate  not  excepted,  must  be  recorded  in  a  well-bound 
book  kept  for  that  purpose  in  like  manner  as  estates  of  de- 
ceased persons,  and  the  same  fees  will  be  allowed  therefor.* 

If  the  personal  estate  has  been  received  from  the  executor 
or  administrator,  or  former  guardian  or  curator,  and  has  been 
appraised,  it  is  not  necessary  for  the  guardian  or  curator  to 
have  it  appraised  again,  but  he  must  state  in  his  inventory  the 
appraised  value  as  it  appears  on  the  appraisement  of  such  ex- 
ecutor or  administrator  or  former  guardian  or  curator,  and 
he  will  be  held  to  account  accordingly.^ 

§  467.  Concealed  or  Embezzled  Goods  or  Effects,  How 
Recovered. — The  statute  provides  that  upon  complaint 
made,  on  oath,  to  any  court  having  jurisdiction,  by  any  guar- 
dian, curator  or  ward,  or  by  any  creditor  or  other  person  in- 
terested in  expectancy,  reversion  or  otherwise,  against  any  per- 
son within  the  county  suspected  of  having  concealed  or  em- 
bezzled any  of  the  money,  goods  or  effects  of  the  ward,  and 
having  them  in  his  possession  or  under  his  control,  the  court 
may  cite  and  examine  such  suspected  person,  and  proceed,  as 
to  such  charge,  in  the  same  manner  as  is  provided  by  law,  re- 
specting persons  suspected  of  concealing  or  embezzling  the 
eft'ects  of  a  testator  or  intestate.*' 

If  any  person  file  a  like  complaint  against  any  guardian  or 
curator,  the  court  having  probate  jurisdiction  may  cite  him 
and  compel  his  appearance,  and  may  proceed  upon  such  com- 

8  Ante,  §§  210,  211. 
*  Rev.  St.  1909,  §  426. 
6  Rev.  St.  1909,  §  427. 

6  Rev.  St.  1900,  §  428;  Johnson  v.  Payne  &  Williams'  Bank.  56  Mo. 
App.  257. 

KEL.MO.P.G.— 31 


182  INVENTORY   AND   APPKAISEMENT  §  467 

plaint,  in  the  same  manner  as  is  provided  for  proceeding  in 
such  case  against  executors  and  administrators.^ 

7  Rev.  St.  1909,  §  429 ;  ante,  §§  216,  218 ;  State  ex  rel.  Jacobs  v. 
Elliott,  157  Mo.  609,  57  S.  W.  1087,  80  Am.  St,  Rep.  643 ;  State  ex 
rel.  Patterson  v.  Tittinaiin,  134  Mo.  162,  35  S.  W.  579;  Johnson  v. 
Payne  &  Williams'  Bank,  56  Mo.  App.  257;  Tittman  v.  Green,  108 
Mo.  22,  18  S.  W.  885. 


§  469  SALE    OF   REAL    ESTATE 


483 


CHAPTER  XXXIX 

SALE  OF  REAL  ESTATE  OF  MINORS  BY  GUARDIAN  OR 
CURATOR 

§  4GS.  For  what  purpose  it  may  be  sold. 

•i(J9.  Petition  aud  order  of  sale. 

470.  Notice  and  terms  of  sale — Report  of  sale. 

471.  Sale  how  to  be  conducted— Validity   thereof. 

472.  Guardian's  deed. 

473.  Sale  of  land  for  purpose  of  rt'investinent. 

474.  Same — Order  of  sale— Addiliuiuil  bond. 

475.  Sale  and  deed. 

§  468.  Sale  of  Real  Estate  of  Minors. — Although  a  guard- 
ian or  curator  has  the  management  and  control  of  the  ward's 
real  estate  and  may  rent  it  and  receive  the  rents  and  prof- 
its, yet  he  cannot  sell  or  incumber  it,  without  an  order  from  tlie 
proper  court  authorizing  such  sale  or  incumbrance.^  There 
are  two  purposes  or  objects  for  which,  under  the  law,  a  mi- 
nor's land  may  be  sold,  by  order  of  the  court  upon  the  applica- 
tion of  the  guardian  or  curator. 

1.  It  may  be  leased,  mortgaged  or  sold  for  the  support, 
maintenance  or  education  of  the  minor. 

2.  It  may  be  leased  or  sold  for  the  purpose  of  reinvest- 
ment. 

As  to  the  first,  it  is  provided  that  the  court  must  order  the 
proper  education,  support  and  maintenance  of  the  minors,  ac- 
cording to  their  means ;  and  for  that  purpose  may.  from  time 
to  time,  make  necessary  appropriations  of  the  money  or  per- 
sonal estate,  or  income,  of  any  minor ;  and  when  the  personal 
estate  shall  be  insufficient,  or  not  applicable  to  the  object,  the 
court  may  order  the  lease  or  sale  of  real  estate,  or  so  much 
thereof  as  may  be  requisite,  or  that  the  same  be  mortgaged  for 
not  less  than  two-thirds  of  its  real  value,  to  raise  the  funds 
necessary  to  support,  maintain  or  educate  the  minor. - 

§  469.  Petition  and  Order  of  Sale. — The  guardian  should 
apply  by  petition  for  the  sale  of  the  real  estate  of  the  ward. 
The  following  form  may  be  used: 

1  Rev.  St.  1909,  §  430. 

2  Rev.  St.  1909,  §  430;  Beal  v.  Harmon,  38  Mo.  435;  In  re  Tucker, 
74  Mo.  App.  331 ;  Brent  v.  Grace's  Adm'r,  30  Mo.  253 ;  State,  to  Use 
of  Smith,  V.  Martin,  18  Mo.  App.  4G8. 


484  SALE    OF   REAL    ESTATE  §  469 

Petition  for  Sale  of  Real  Estate  by  Guardian 

State  of  ,         ]  In  the  Probate  Court  of  said  County,  

County  of  .  j      term,  19 — . 

In  the  Matter  of  the  Estate  of ,  Minor. 

To  the  Probate  Court  of  said  County: 

The  petition  of  John  Doe,  of  tlie  county  of  and  state  of 

respectfully  represents  and  shows  that  he  is  the  duly  ap- 


pointed and  legally  qualified  guardian  of  the  person  and  estate 
of  Oliver  Roe,  a  minor  about  tlie  age  of  16  years ;  that  said  minor 
is  the  owner  of  the  following  real  estate  situate  in  the  county  of 

and  state  of  ;    viz.:    (here  describe  the  land  and  the 

Interest  of  the  ward  in  it.)  Your  petitioner  shows  further  that  he 
has  faithfully  applied,  under  the  order  of  the  court,  all  the  personal 
estate  of  said  minor,  which  has  come  to  his  knowledge  or  posses- 
sion, to  the  support  and  maintenance  of  said  minor,  as  will  appear 

try  reference  to  the  account  rendered  to  the  court  at  the term 

19 — ,  thereof,  by  your  petitioner,  (a  copy  of  which  is  hereto  at- 
tached,) and  there  is  no  per.sonal  estate  now  in  his  hands  belonging 
to  said  minor,  and  the  rents  and  profits  of  said  land  are  wholly  in- 
sufficient to  pay  the  charges  and  expenses  necessary  to  support, 
maintain  and  educate  said  minor. 

Wherefore,  for  the  purpose  of  raising  the  funds  necessary  to 
maintain,  support  and  educate  said  minor,  the  undersigned  guardian 
prays  the  court  to  order  the  sale  of  the  real  estate  above  described, 
or  so  much  thereof  as  may  be  requisite  for  that  purpose,  ,at  public 
or  private  sale,  and  upon  such  terms  as  the  court  may  direct. 

JOHN  DOE, 
Guardian. 

This  form  may  be  used  in  general  practice,  but  must  be 
changed  to  suit  each  particular  state  of  facts  relied  upon  as 
the  ground  for  the  sale. 

Form  of  Order  of  Sale 

In  the  Matter  of  the  Estate  and  l^,        ^  c^  ^      «T.iT^i.i. 
r^       ^-       ut^    *  r^i-         n  ^  Order  of  Sale  of  Real  Estate. 

Guardianship  of  Oliver  Roe.     J 

On  this  day  comes  John  Doe,  guardian  of  the  person  and  estate 
of  Oliver  Roe,  a  minor  of  the  age  of  16  years,  and  filed  his  petition 
for  the  sale  of  real  estate  of  said  minor  therein  described,  setting 
forth  that  he  has  faithfully  applied  all  the  personal  estate  of  said 
minor  to  his  support  and  maintenance,  and  that  there  is  no  personal 
estate  in  his  hands  belonging  to  said  minor,  and  the  rents  and  profits 
of  .said  lands  are  wholly  insufficient  to  pay  the  charges  and  expenses 
necessary  to  support  and  educate  said  minor,  and  asking  an  order 
for  the  sale  of  the  following  real  estate,  or  so  much  thereof  as  shall 
be  necessary  to  complete  the  education  of  said  minor,  or  to  support, 
maintain  and  educate  said  minor,  viz.:   (here  describe  the  real  estate.) 

And  the  court  having  heard  the  petition  and  evidence  in  relation 
thereto,  is  satisfied  that  said  order  should  be  granted.  It  is  there- 
fore ordered  by  the  court  that  said  guardian  be  and  is  hereby  au- 


470  SALE    OF   REAL    ESTATE 


485 


thorized  and  empowered  to  soil  the  said  real  estate,  at  either  ijublie 
or  private  sale,  (first  having  had  the  same  appraised  according  to 
law),  for  not  less  than  three-fourths  of  the  appraised  value  thereof, 
on  the  following  terms,  to  wit:  One-third  of  the  purchase  money 
to  be  paid  down,  one-third  in  six  months  and  the  remainder  in 
twelve  months  from  the  day  of  sale,  the  purchaser  to  give  his  notes 
for  the  deferred  payments,  with  interest  at  S  per  cent  per  annum, 
and  secure  the  same  by  good  personal  security,  and  that  said  guard- 
ian report  said  sale  and  his  proceedings  therein  to  this  court  at  the 
next  term  thereof. 

If  it  is  thought  best  to  sell  at  public  sale,  let  the  order  state 
the  time,  place  and  terms  of  sale.  The  order  may  be  to  sell  at 
public  or  private  sale,  or  at  either,  at  the  option  of  the  guard- 
ian. 

§  470.  Notice  and  Terms  of  Sale.— Report  of  Sale. — The 
statute  provides  that  when  the  sale  is  ordered  it  must  be  ad- 
vertised and  conducted  in  the  same  manner  as  sales  of  real 
estate  of  deceased  persons  by  executors  or  administrators 
for  the  payment  of  debts,  except  that  there  need  be  no  pub- 
lication of  notice  to  parties  in  interest  before  making  the 
order.^ 

The  sections  of  the  statute  making  these  provisions  were 
enacted  long  prior  to  the  revision  in  1909  of  the  laws  relat- 
ing to  the  manner  of  sales  of  real  estate  of  deceased  persons 
by  executors  and  administrators  for  the  payment  of  debts. 
Prior  to  the  revision  of  the  statutes  relating  to  the  sales  of 
real  estate  by  executors  and  administrators  in  that  year,  it  was 
necessary  that  all  sales  made  be  reported  to  the  court  by  the 
executor  or  administrator  at  the  next  term  of  court  after  such 
sale  and  be  then  approved  by  the  court.  Attached  to  the  report 
when  made  should  be  a  certificate  of  the  appraisement  and 
proper  verification.*  By  the  amendment  of  1909.  the  manner 
of  reporting  of  sales  by  executors  and  administrators  for  the 
payment  of  debts  of  the  deceased  was  changed,  so  that  the  re- 
port should  be  filed  within  ten  days  after  the  sale  is  made  and 
remain  on  file  ten  days  before  receiving  the  approval  of  the 
court."  The  question,  of  course,  arises  whether  the  sale  of  a 
guardian  or  curator  should  be  in  conformance  with  the  stat- 
ute as  it  existed  at  the  time  of  the  enactment  of  the  sections 
relating  to  the  sales  by  guardians,  or  whether  such  sale  should 
be  made  in  the  manner  now  provided  for  making  sales  of  real 

3  Rev.  St.  1901),  §  431;    Pattee  v.  Thomas,  58  Mo.  10.5:    Ancoll  y. 
Southern  Illinois  &  M.  Bridge  Co.,  22;^>  Mo.  209.  122  S.  W.  709. 

4  Rev.  St.  1899,  §  167.  ^  Rev.  St.  1909,  §  171. 


486  SALE    OF   REAL   ESTATE  §  470 

estate  by  executors  or  administrators.  The  change  was  to  re- 
cently made  to  have,  as  yet,  received  the  attention  of  any 
courts  of  last  resort  in  ]\Iissouri,  nor  has  the  question  been  di- 
rectly at  issue  in  courts  of  other  states.  The  statute  relating 
to  sales  of  real  estate  by  guardians  uses  the  following  lan- 
guage: "He  shall  report  such  sale  to  the  court  ordering  the 
sale  in  the  same  manner  as  executors  and  administrators  are 
now  required  by  law  to  report  sales  of  real  estate  made  by 
them  for  the  payment  of  debts."  It  would  seem,  and  in  sup- 
port of  this  view  may  be  cited  cases  decided  by  courts  of  last 
resort  in  Texas,  that  the  statute  relating  to  sales  by  executors 
and  administrators  at  the  time  the  sections  regarding  guard- 
ian's and  curator's  sales  were  enacted  would  govern. "^  This 
would  require  the  proceedings  to  be  in  the  manner  of  the  pro- 
ceedings in  executor's  or  administrator's  sales  under  the  stat- 
utes as  they  existed  before  1909.  which  has  been  referred  to. 
This  would  necessitate  the  guardian  or  curator  reporting  his 
sale  of  real  estate  to  the  court  at  the  next  term  after  such  sale 
v/as  made.  It  is  the  safer  and  better  policy  to  permit  the  re- 
port to  remain  on  file  ten  days  after  the  same  is  filed. 

No  real  estate  of  any  minor  can  be  sold  for  less  than  three- 
fourths  of  its  appraised  value ;  nor  can  the  guardian  or  curator 
become  directly  or  indirectly  the  purchaser  of  such  real  estate. '^ 
If  the  sale  shall  be  approved  by  the  court  it  will  be  valid,  to 
all  intents  and  purposes,  but  if  the  court  refuses  to  approve  the 
report,  the  order  of  sale  may  thereupon  be  renewed,  and  the 
same  proceedings  had  as  upon  the  original  order.® 

Report  of  Sale 

[Title  of  the  Case  same  as  the  Petition.] 
.Tohn  Doe.   guardian  of  the  person  and  estate  of  Oliver   Roe,   a 
minor,  reports  to  the  court,  that  in  obedience  to  the  order  of  this 

court,  made  at  its term,  A.  D.  19 — ,  directing  him  to  sell,  at 

private  sale,  the  real  estate  in  said  order  described,  as  follows,  to 

wit:    (here  describe  it),  he  did,  on  the  day  of  ,  19 — , 

(liaving  first  had  the  same  duly  appraised  by  A,  B..  C.  D.  and  E.  F., 
three  disinterested  householders  of  said  county,  who  were  first  duly 
sworn  as  such  appraiser.s),  sell  the  said  real  estate,  as  follows:   (Here 

6  Fischer  v.  Simon,  9.j  Tex.  2.34,  06  S.  W.  882 ;  Marston  v.  Yaites 
(Tex.  Civ.  App.)  GG  S.  W.  SG7 ;  Swain  v.  Mitchell,  27  Tex.  Civ.  App. 
62.  66  S.  W.  61. 

7  Rev.  St.  1909,  §  4.32 ;  Beal  v.  Harmon,  38  Mo.  435 ;  Carder  v. 
Oulbertson,  100  Mo.  269.  13  S.  W.  88,  18  Am.  St.  Rep.  548. 

s  Rev.  St.  1909,  §  433 ;  Henry  v.  McKerlie,  78  Mo.  416 ;  Wilkerson 
V.  Allen,  67  Mo.  502 ;    Bone  v.  Tyrrell,  113  Mo.  175,  20  S.  W.  796. 


§  471  SALE    OF   REAL    ESTATE  487 

sot  the  land  sold,  to  whom  sold,  and  the  terms  and  price),  being  the 

highest  and  best  bid  f<jr  the  same.     And  the  said  has  fully 

complied  with  the  terms  of  said  sale,  and  has  paid  the  sum  of 

dollars  in  cash,  and  has  executed  to  said  guardian  his  notes,  as  fol- 
lows: (Here  describe  them),  as  required  by  said  order  of  sale;  and 
I  certify  that  said  real  estate  was  sold  for  not  less  than  three-fourths 
of  its  appraised  value.  JOHN  DOE, 

Guardian. 

County  of  ,     ] 

State  of  .     (    ' ' 

John  Doe  being  sworn,  says  that  he  did  not  directly  or  indirectly 
purchase  said  real  estate,  or  any  part  thereof,  or  any  interest  there- 
in, and  that  he  is  not  interested  in  the  property  sold  except  as  .stat- 
ed in  said  report.  JOHN  DOE, 

Sworn  to  and  subscribed  before  me  this day  of ,  19 — . 

P.  MERCER, 
Probate  Judge. 

§  471.  Sale — How  to  be  Conducted. — In  making  a  sale  of 
the  minor's  land  the  guardian  should  be  careful  to  comply 
with  all  the  requirements  of  the  law,  and  with  the  order  of 
the  court.  Such  sales  are  authorized  by  the  statute  and  can 
only  be  made  in  pursuance  of  its  terms — a  substantial  depar- 
ture in  making  the  sale  from  the  requirements  of  the  statute 
renders  it  unavailing  to  pass  the  title  to  the  purchaser.^  It 
was  formerly  held,  in  Missouri,  that  when  a  sale  of  the  ward's 
real  estate  by  the  guardian  was  made  without  an  appraise- 
ment, and  the  sale  reported  and  confirmed  at  the  same  term 
at  which  it  was  ordered,  no  title  passed  to  the  purchaser  by 
the  guardian's  deed.'"  but  it  is  now  held  that  such  sale  would 
be  irregular  and  voidable,  but  not  void  in  a  collateral  proceed- 
ing.^^ It  is  the  duty  of  the  purchaser,  at  such  sales,  to  see 
that  the  proceedings  of  the  court  and  the  acts  of  the  guardian 
making  the  sale  are  in  conformity  to  the  law.^- 

If  the  order  is  to  sell  at  public  sale,  it  should  be  conducted 
in  the  most  public  manner,  and  every  effort  should  be  made 
to  obtain  bidders.  The  guardian  cannot  bid  himself,  or  by 
another;  ^^  he  can  have  no  arrangement  by  which  he  can  ac- 
quire the  property,  and  should  carefully  avoid  any  other  re- 

»  Young  V.  Dowling,  15  111.  4S1. 

loCastleman  v.  Kelfe,  50  Mo.  58.^5;  State,  to  Use  of  Perry,  v. 
Towl,  48  Mo.  148;  McVey  v,  McVey.  51  Mo.  406;  Strouse  v.  Dren- 
nan.  41  Mo.  289. 

11  Exendine  v.  Morris,  70  Mo.  410;  Fleming  v.  Bale,  23  Kan.  88; 
Bryan  v.  Bander,  23  Ivan.  !>5. 

12  Valle  V.  Fleming,  19  Mo.  4.">4.  01  Am.  Dec.  500;  Robert  v.  Casey, 
25  Mo.  584;    Strouse  v.  Drennan,  41  Mo.  289. 

1 3  Rev.  St.  1909,  §  432. 


488  SALE    OF   KEAL   ESTATE  §  471 

lation  to  the  sale  than  that  of  a  seller  desirous  to  obtain 
the  best  and  highest  price  possible  for  the  land  sold.  He  has 
no  right  to  barter  or  exchange  the  property  of  his  ward,  nor 
has  he  a  right  to  pay  his  own  debt,  or  to  permit  the  off-set  of 
his  own  debt,  with  the  estate  of  his  ward.^*  He  must  sell  for 
an  exclusive  money  consideration. 

On  making  the  sale,  if  the  purchase  money  is  not  all  paid 
down  and  deed  executed  to  the  purchaser,  the  guardian  should 
give  him  a  certificate  of  purchase  or  statement  of  the  sale.  It 
may  be  as  follows: 

CertiUcate  of  Purchase 

I,  John  Doe,  guardian  of  the  person  and  estate  of  Oliver  Roe, 
minor  heir  of  John  Roe.  deceased,  by  authority  of  an  order  of  the 
probate  court  of county  made  at  the term,  19 — ,  there- 
of, have  this  day  sold  to  James  ^Monroe,  at  private  sale,  the  follow- 
ing real  estate  situate  in  the  comity  of and  state  of ,  to 

wit  (here  describe  it)  for  the  sum  of  dollars  subject  to  the 

confirmation  and  approval  of  the  court.     And  said  J.  M.  has  paid  me 

dollars  of  said  purchase  money  down,  and  has  executed  his 

notes,  with  Elisha  Gray  as  security,  for  the  balance,  in  two  equal 
payments,  one  due  in  six  mouths  and  the  other  in  twelve  months 
after  date,  and  bearing  interest  from  date  at  ten  per  cent,  per  an- 
num. 

This day  of ,  19—.  JOHN  DOE, 

Guardian. 

§  472.  The  Guardian's  Deed. — AVhen  the  purchase 
money  for  the  land  sold  has  been  fully  paid,  the  guardian  or 
curator  must  execute  and  deliver  to  the  purchaser  or  pur- 
chasers deeds  of  conveyance,  referring  in  apt  and  appropriate 
terms  to  the  order  of  the  court,  the  advertisement,  the  ap- 
praisement and  description  of  the  real  estate  sold,  the  time, 
the  place  and  terms  of  sale,  and  payment  of  the  purchase 
money  (which  recital  shall  be  prima  facie  evidence  of  the  facts 
so  recited)  and  conveying  to  such  purchaser  or  purchasers  all 
the  right,  title  and  interest  of  the  ward  in  the  real  estate  sold.^^ 
If  any  guardian  or  curator,  from  death,  removal  or  other 
cause,  fail  to  complete  the  sale  or  make  the  deed,  his  successor 
may  do  so ;  if  there  be  no  successor,  the  sheriff  of  the  county, 
on  order  of  the  court,  may  complete  the  sale  or  make  the  nec- 
essary deed  or  deeds.  ^'^ 

14  Small  wood  v.  Lafayette  County,  75  Mo.  450, 
16  Bobb  V.  Barnum,  .59  Mo.  394. 
i«  Rev.  St.  1909,  §  434. 


§  472  SALE    OF   REAL   ESTATE  48^ 

The  deed  must  be  acknowledged  and  recorded  as  other  in- 
struments conveying  real  estate,  and  with  like  cllect,  and  when 
so  acknowledged,  will  be  received  in  evidence  in  all  the  courts 
of  the  state  without  further  proof. ^^ 

Form  of  Guardian's  Deed 


Whereas,  the  probate  court  of  the  county  of at  the 


term,  19 — ,  thereof,  did  ou  petition  of  Jolni  Doe,  guardian  of  the 
person  and  estate  of  Oliver  Roe,  a  minor,  order  the  sale  of  the  real 
estate  of  said  minor,  in  said  order  and  in  this  deed  described,  for 
the  purpose  of  raising  funds  to  support  and  educate  said  ward ;  and 
whereas,  in  obedience  to  said  order,  and  in  pursuance  of  the  statute, 

the  said  guardian  did,  ou  the day  of 19—,  between  the 

hoars  of o'clocli  a.  m.  and  o'clooli  p.  m.  at  the  court 

house  door  in  the  city  of ,  in  said  county,  and  during  the  sit- 
ting of  the court  of  said  county,  sell  at  public  vendue  the  real 

estate  above  referred  to,  and  hereinafter  described,  to  James  Monroe 

for  the  sum  of  dollars,  one-third  cash  in  hand,  one-third  in 

six  months,  and  the  balance  in  twelve  months,  with  S  per  cent  in- 
terest from  date,  which  was  the  highest  bid  for  the  same,  and  more 
than  three-fourths  of  the  appraised  value  thereof.  And  whereas, 
before  the  said  sale,  the  said  guardian  caused  the  said  real  estate  to 
be  appraised  by  O.  N.,  S.  S.  and  T.  T.,  three  disinterested  household- 
ers of  said  county,  who  were  first  duly  sworn  as  such  appraisers, 
(as  appears  by  the  affidavit  and  certificate  of  appraisement  returned 

with  the  report  of  said  sale  and  proceedings  at  the  term  of 

said  court),  and,  also,  caused  a  notice  containing  a  particular  de- 
scription of  the  estate  to  be  sold,  stating  the  time,  place  and  terms 

of  sale,  to  be  published  in  the  ,  a  newspa])er  published  in  the 

city  of ,  in  the  county  of ,  as  appears  by  a  copy  of  the 

notice  and  affidavit  of  C.  D.,  the  publisher  thereof,  filed  with  said 
report.     And,   whereas,   the   said   guardian    reported    said   sale   and 

proceedings  under  said  order  to  said  court  at  the term.  19 — . 

thereof,  and  said  report  was  duly  approved  and  confirmed,  and  said 
guardian  ordered  to  execute,  acknowledge  and  deliver  to  said  .Tames 
Monroe,  upon  full  payment  of  the  purchase  money,  a  deed  iu  due 
form  of  law,  conveying  to  him  all  the  right,  title  and  interest  of  said 
minor  in  and  to  said  real  estate ;  and.  whereas,  the  said  James  Mon- 
roe has  paid  to  the  said  guardian  the  full  amount  of  the  purchase 
money  bid  for  said  land.     Now,  therefore,  in  consideration  of  the 

premises  and  of  the  payment  of  the  said  sum  of dollars,  the 

receipt  whereof  is  hereby  acknowledged,  the  said  John  Doe.  as  the 
guardian  of  the  person  and  estate  of  the  said  Oliver  Roe.  does  by 
these  presents  grant,  sell  and  convey  to  the  sjiid  James  Monroe  all 
the  right,  title  and  interest  of  the  said  Oliver  Roe  in  and  to  the  fol- 
lowing described  real  estate  situate  in  the  county  of and  state 

of  Missouri,  to  wit:  (here  describe  the  land  and  the  interest  of  the 
minor  in  it).    To  have  and  to  hold  the  lands  hereby  conveyed  with 

17  Rev.  St.  1909,  §  435. 


490  SALE   OF   REAL   ESTATE  §  472 

all  the  appurtenances  thereunto  belonging,  to  the  only  proper  use, 
benefit  and  behoof  of  the  said  James  Monroe,  his  heirs  and  assigns 
forever. 

In  witness  whereof,  etc.  J D . 

Guardian. 

[Add  acknowledgment,  as  per  form.     Ante,  §  010.]  [Seal.] 

The  foregoing  form  of  deed  is  intended  for  a  public  sale. 
When  the  guardian  sells  at  private  sale  the  deed  should  be 
modified  in  accordance  with  the  facts.  The  recitals  in  the  deed 
should  conform  to  the  requirements  of  the  statute/®  and  the 
following  form  may  be  used  in  the  case  of  a  private  sale  by 
guardian  or  curatrix  where  the  real  estate  is  sold  for  the  pur- 
pose of  re-investment  of  funds : 

Curatrix's  Deed 

To  All  to  Whom  These  Presents  shall  Come,  Georgia  Fitzgerald, 
Curatrix  of  the  Estate  of  Helen  Osboru  and  Janette  Osborn, 
Minors,  Sends  Greeting: 

Whereas,   the   probate   court   of   the    county   of   ,    state   of 

Missouri,  by  its  order  of  sale  made  at  the term,  19 — ,  thereof, 

did  on  petition  of  Georgia  Fitzgerald,  curatrix  of  the  estate  of  Helen 
Osborn  and  Janette  Osborn,  minors,  order  the  said  curatrix  to  sell 
at  private  sale  the  real  estate  of  said  minors  In  said  order  and  this 
deed  described,  for  the  purpose  of  the  reinvestment  of  the  funds 
arising  from  such  sale  in  property  producing  an  income;  it  having 
appeared  to  the  court  on  the  oath  of  credible  and  disinterested  wit- 
nesses, that  it  would  be  for  the  benefit  of  the  estate  of  said  minors 
that  the  real  estate  described  in  this  deed  be  sold ; 

And  whereas,  in  obedience  to  said  order  of  sale,  said  curatrix  did 

on  the day  of ,  19 — ,  sell  at  private  sale  the  real  estate 

above  referred  to  and  hereinafter  described  to  John  Prescott  for 
dollars,  first  having  caused  the  said  real  estate  to  be  ap- 
praised by  Joseph  Thompson,  Timothy  Kellogg  and  Thomas  Cragg, 
three  disinterested  householders  of  said  county,  who  were  first  duly 
sworn  as  such  appraisers  as  appears  by  the  affidavit  and  certificate 
of  apprnisement  filed  witli  the  report  of  said  sale; 

And  whereas,  the  said  curatrix  reported  said  sale  and  proceedings 

under  said  order  to  said  court  on  the day  of ,  19 — ,  the 

same  being  the  first  of  the term,  19—,  of  said  court,  and  said 

report  remained  on  file  in  said  court  for  ten  days  thereafter,  there- 
upon it  was  on  the day  of  ,  19 — ,  duly  approved  and 

confirmed,  and  said  curatrix  ordered  to  execute,  acknowledge  and 
deliver  to  said  John  Prescott,  upon  full  payment  of  the  purchase 
money,  a  deed  in  due  form  of  law  conveying  to  him  all  the  right, 
title  and  interest  of  said  minors  in  and  to  the  said  real  estate; 

And  whereas,  the  said  John  Prescott  has  paid  to  the  said  curatrix 
in  cash  the  full  amount  of  the  purchase  money  for  said  land: 

1 8  Bobb  V.  Barnum,  59  Mo.  394 ;  Bone  v.  Tyrrell,  113  Mo.  175,  20 
S.  W.  796. 


g  473  SALE    OF   REAL    ESTATE  491 

Now,  therefore,  In  considoralion  of  the  promises  and  the  payiiitMit 
of  the  said  sum  of  dollars,  the  rofeipt  whereof  is  hereby  ac- 
knowledged, the  said  fJeor^ia  Fitz^'crald,  as  the  curatrix  of  the  es-  , 
tate  of  the  said  Helen  Osborn  and  Janette  Osborn,  does  by  these 
presents  srant,  sell  and  convey  to  the  said  John  Prescott  the  right, 
title  and  interest  of  the  said  Helen  Osborn  and  Janotte  Osborn  in  and 

to  the  following?  described  real  estate  situate  in  the  county  of , 

and  state  of  Missouri,  to-wit: 

All  of  lot  twenty-four  (24)  in  block  sixty-two  (02)  in  Groves'  ad- 
dition to  the  city  of  ,  as  shown  on  the  plat  thereof,  wliich  is 

recorded  in  the  office  of  the  recorder  of  deeds  of county,  Mis- 
souri." 

To  have  and  to  hold  unto  the  said  John  Prescott,  his  heirs  and  as- 
signs, forever,  as  fully  as  I,  the  said  Georgia  Fitzgerald,  curatrix 
of  the  estate  of  the  above  named  minors,  can  or  ought  to  convey  the 
same. 

In  witness  whereof,  I  liereto  sign  my  name  and  affix  my  seal  this 

day  of ,  A.  D.  19 — ,  after  the  approval  of  said  sale. 

GEORGIA  FITZGERALD, 

Curatrix. 

State  of  Missouri,     I 

ss. 
County  of  .  \ 

On  tliis day  of ,  19 — ,  before  the  undersigned,  notary 

public  in  and  for  said  county  and  state,  personally  appeared  Georgia 
Fitzgerald,  to  me  known  to  be  the  person  described  in  and  who  exe- 
cuted the  foregoing  instrument  of  writing,  and  acknowledged  the 
same  to  be  her  free  act  and  deed,  as  the  said  curatrix,  for  the  uses 
and  purposes  therein  expressed. 

In  witness  whereof,  I  did  hereto  sign  my  name  and  afhx  my  seal 
this day  of ,  A.  D.   19—. 

My  commission  expires  ,  19 — . . 

Notary  Public. 

§  473.  Sale  of  Land  for  Purposes  of  Reinvestment. — 
When  it  shall  appear  that  it  would  be  for  the  benefit  of  a  ward 
that  his  real  estate,  or  any  part  thereof,  be  sold  or  leased,  or 
his  personal  property,  or  any  part  thereof,  be  sold,  and  the  pro- 
ceeds put  on  interest,  or  invested  in  United  States  or  state 
bonds,  or  in  other  real  estate  or  personal  property,  or  in  the 
preservation  of  the  estate  of  the  minor,  the  probate  court  must 
authorize  and  order  such  sale,  leasing  or  investment.^ ^  To 
obtain  such  order  the  guardian  or  curator  must  present  to  the 
court  a  petition  setting  forth  the  condition  of  the  estate  and 
the  facts  and  circumstances  upon  wdiich  the  petition  is  founded. 


10  Rev.  St.  1909,  §§  430,  437;  In  re  Wood,  71  Mo.  623;  Heady  v. 
Crouse.  203  Mo.  100,  100  S.  W.  10.^.2,  120  Am.  St.  Rep.  04:1 :  Ancell  v. 
Southern  Illinois  &  Mo.  Bridge  Co.,  223  Mo.  209,  122  S.  W.  709. 


492  SALE    OF   KEAL    ESTATE  §  473 


Form  of  Petition  for  Sale  of  Minor's  Land 

State  of  Missouri,     )  ^^     ^^  ^^^  Probate  Court  of  said  County; 

Countj'  of  .  j 

The  petition  of  John  Doe,  of  said  county  and  state,  respectfully 
represents  and  shows  to  the  court  that  he  is  the  duly  appointed 
and  legally  qualified  guardian  of  the  person  and  estate  of  Oliver 
Roe,  a  minor  about  the  age  of  16  years ;   that  said  minor  is  the  owner 

in  fee  of  the  following  real  estate  in  the  county  of and  state 

of  Missouri,  to  wit:  (here  describe  the  land);  that  said  land  is  im- 
proved, and  has  upon  it  a  dwelling  house  and  out  buildings ;  that 
said  buildings  and  improvements  on  the  said  land  are  in  a  dilap- 
idated condition  and  rapidly  decaying;  that  the  dwelling  house 
is  becoming  untenantable  and  the  fence  insufficient  to  protect  the 
fields;  that  the  petitioner  has  no  funds  belonging  to  said  minor  to 
put  the  said  property  in  tenantable  repair ;  that  said  real  estate  is 
deteriorating  in  value  for  the  reasons  aforesaid  (state  the  condition 
of  the  land,  and  reasons  for  which  the  sale  is  asked).  Your  peti- 
tioner further  states  that  said  real  estate  is  now  worth  dol- 
lars, and  that  the  interest  of  his  said  ward  would  be  greatly  pro- 
moted by  a  sale  of  the  said  property  and  an  investment  of  the  funds 
arising  from  the  sale  thereof,  in  wild  land,  (or  state  how  the  funds 
ai'e  to  be  invested).  Wherefore,  in  consideration  of  the  premises, 
your  petitioner  prays  for  an  order  to  sell  the  said  real  estate,  ac- 
cording to  the  statute  in  such  case  made  and  provided. 

JOHN  DOE, 
Guardian. 

This  petition  may  be  modified  to  apply  to  the  sale  of  per- 
sonal property. 

§  474.  Same— Order  of  Sale— Additional  Bond. — If  after 
a  full  examination,  on  the  oath  of  credible  and  disinterested 
witnesses,  it  appears  to  the  court  that  it  would  be  for  the  bene- 
fit of  the  ward  that  the  personal  estate,  or  any  part  of  it  should 
be  sold  and  reinvested  or  exchanged,  the  court  may  make 
an  order  therefor,  and  the  curator  must  carry  out  such  order  in 
all  its  parts.  And  if,  after  such  full  examination,  it  appears 
to  the  court  that  it  would  be  for  the  benefit  of  the  ward  that 
the  real  estate,  or  any  part  of  it,  should  be  sold  or  leased,  the 
court  may  make  an  appropriate  order  for  such  sale  or  lease, 
under  such  regulation  and  conditions,  subject  to  the  statute 
in  relation  to  the  sale  of  real  estate  of  minors,  (see  next  pre- 
ceding section)  as  the  court  shall  consider  suited  to  the  case, 
first  requiring  the  guardian  or  curator  to  enter  into  good  and 
sufficient  bonds  to  make  such  leases  and  conduct  such  sales 
with  fidelity  to  the  interests  of  his  ward,  and  faithfully  to 
account  for  the  proceeds  of  such  sales  and  leases  according  tO' 


§  475  SALE    OF   EEAL   ESTATE  493 

law,  and  as  the  order  of  the  court  may  require,  if  the  court  be 
of  the  oi)inion  that  such  bond  is  necessary.-" 

J'orm  of  Bond  for  Sale  of  Real  Estate 

Wo,  John  Doe,  as  principal  and  E.  F.  and  G.  II.  as  securities, 
acknowlodse  ourselves  to  owe  and  be  indebted  to  the  State  of  Mis- 
souri for  the  use  of  Oliver  Koe,  a  minor,  in  the  sum  of dol- 
lars, for  the  payment  of  which  we  bind  ourselves  firmly  by  these 
pre.sents.  The  condition  of  the  above  obli.i;ation  is  such,  that  where- 
as, the  above  named  John  Doe,  as  the  guardian  of  the  said  Oliver 
Roe,  a  minor,  has  petitioned  for  and  obtained  an  order  from  the  pro- 
bate court  of  the  county  of ,  at  the term,  19 — ,  thereof, 

to  sell  the  following  real  estate  of  said  minor,  to  wit:  (here  de- 
scribe it).  Now  should  the  said  John  Doe,  as  such  guardian,  con- 
duct the  sale  of  said  land  with  tidelity  to  the  interests  of  his  said 
ward,  and  faithfully  account  for  the  proceeds  of  such  sale  according 
to  law  and  as  the  order  of  the  court  authorizing  said  sale  requires, 
then  this  bond  to  be  void ;  otherwise  to  be  and  remain  iu  force. 
Witness,  etc.,  etc. 

For  order  of  sale,  appraisement,  report  of  sale  and  deed, 
etc.,  see  preceding  sections  of  this  chapter,  and  ante,  §  304 
et  seq. 

When  the  sale  is  ordered  by  the  court  for  the  purpose  of 
changing  the  investment,  the  court  may  require  that  a  new 
bond  be  filed  by  the  guardian,  but  when  the  sale  is  for  the 
education  of  the  minor,  no  additional  bond  is  required,  unless 
the  first  one  given  is  insufHcient  to  secure  the  faithful  applica- 
tion of  the  funds  arising  from  the  sale.-^  And  when  the  order 
is  for  sale  of  personal  estate  for  reinvestment,  no  additional 
bond  need  be  given  unless  the  court  shall  be  of  opinion  that 
the  first  bond  is  insufficient. 

§  475.  Sale  and  Deed. — The  law  does  not  permit  a  guard- 
ian, either  directly  or  indirectly,  to  become  the  purchaser  of 
the  real  estate  of  his  ward,-^  yet  should  he  do  so  by  artifice  or 
fraud,  and  sell  the  land  to  an  innocent  purchaser,  the  proceed- 
ings in  relation  to  the  sale  being  regular,  such  innocent  pur- 
chaser would  take  a  good  title,  but  as  between  the  guardian 
and  ward  the  guardian's  title  would  be  bad.^^  The  guardian 
would  be  liable  as  trustee  for  any  profit  made  by  him  in  such 
transaction. 

20  Rov.  St.  1909,  §  4T57;  State  ex  rel.  Hyslop  v.  Bilby,  50  Mo.  App. 
162 ;   Cox  V.  Boyce,  152  Mo.  576,  54  S.  W.  467,  75  Am.  St.  Rep.  483. 

21  Makepeace  v.  Lukens,  27  Ind.  435,  92  Am.  Dec.  263. 

22  Real  V.  Harmon,  38  Mo.  435. 

23  Gwinn  v.  Williams,  30  Ind.  374. 


494:  SALE   OF  REAL   ESTATE  §  475 

A  guardian's  deed  of  the  real  estate  of  his  ward,  made  under 
the  order  of  the  court,  on  his  petition  for  the  sale  of  the  land, 
has  only  the  effect  of  a  deed  of  quitclaim.  The  guardian  can- 
not bind  his  ward  by  any  covenants  in  the  deed ;  his  power  is 
to  sell  and  convey  under  the  order  of  the  court  the  title  or 
interest  of  the  ward  in  the  land.  So,  where  after  the  sale  of 
the  guardian,  the  land  is,  upon  the  application  of  the  admin- 
istrator of  the  estate  of  the  ancestor,  sold  to  pay  debts,  the 
guardian  is  not  authorized  to  protect  the  title  of  the  purchaser 
at  his  sale  by  buying  in  the  land  at  administrator's  sale,  nor 
would  the  guardian  be  bound  to  discharge  any  liens  on  the 
land.-* 

A  guardian  has  no  power  to  sell  or  convey  the  real  estate 
of  his  ward,  or  any  part  of  it,  without  an  order  of  the  probate 
court.- ^  Nor  can  he  execute  a  binding  power  of  attorney  to 
any  other  person  to  convey  his  ward's  land."®  And  where  a 
person  has  sold  land  as  guardian  and  the  records  of  the  proper 
court  fail  to  show  that  he  was  ever  appointed  such  guardian, 
the  sale  is  not  valid. ^^  The  appointment  of  a  guardian  must 
be  made  a  matter  of  record.-^ 

2  4  State  ex  rel.  Chesser  v.  Clark,  28  Ind.  138. 

2  6  Shamleffer  v.  Council  Grove  Peerles.s  Mill  Co.,  18  Kan.  24. 

26  Educational  Ass'n  of  Christian  Cburches  v.  Hitchcock,  4  Kan.  42. 

27  McKee  V.  Thomas,  9  Kan.  343. 

2  8  Higginbotham  v.  Thomas,  9  Kan.  328. 


§  476  FOREIGN   GUARDIANS  495 

CHAPTER  XL 
OF  NON-RESIDETsT  OR   FOREIGN  GUARDIANS   AND  WARDS 

§  47G.  Sale  of  land  of  non-resident  minor. 

477.  Keinoval  of  estate  by  foreij^n  jruardian. 

478.  Same — Is  matter  of  comity  lietwetMi  states. 

479.  Domicile  of  ward,  conflict  of  gnardiansbi]). 

480.  Same — Place  of  guardianship — Distribution  of  estate. 

§  476.  Sale  of  Land  of  Non-Resident  Minor. — The  stat- 
ute provides  that  when  a  non-resident  minor,  owning  prop- 
erty in  this  state,  has  a  guardian  in  the  state  or  territory  in 
which  he  resides,  the  prol)ate  court  in  the  proper  county 
may,  for  the  purpose  of  educating  and  supporting  such 
minor,  make  appropriation  of  the  money  or  personal  prop- 
erty belonging  to  him ;  and  when  the  money  or  personal 
property  shall  be  insufficient  for  these  objects,  the  court 
may  order  the  lease  or  sale  of  the  real  estate  of  such  minor, 
or  so  much  thereof  as  may  be  necessary  for  the  purpose 
aforesaid,  and  direct  his  curator  to  pay  over  to  his  guardian 
aforesaid  the  sum  so  appropriated,  or  produced  by  the  sale 
of  the  personal  property,  or  by  the  lease  of  the  real  estate.^ 

When  the  real  estate  of  the  minor  is  sold,  the  court  may, 
in  its  discretion,  direct  the  proceeds  of  the  sale  to  be  paid 
over  to  the  guardian,  or  order  the  same  to  be,  by  the  cu- 
rator, loaned  out  and  secured  on  real  estate  of  at  least  double 
the  value  of  the  sum  loaned,  and  the  interest  accruing  there- 
on to  be,  fi-om  time  to  time,  paid  over  to  the  guardian.-^ 

The  above  provisions  of  the  statute  contemplate  a  sale 
of  the  non-resident  minor's  land  by  a  curator  residing  in  the 
county  where  the  land  or  some  part  of  it  may  be,  and  in 
making  the  sale  he  should  proceed  in  the  manner  pointed 
out  in  the  first  section  of  chapter  39.  But  the  court  may 
authorize  such  non-resident  guardian,  either  in  person  or 
by  his  agent,  acting  under  a  power  of  attorney,  to  sell  such 
real  estate  and  receive  the  proceeds  of  the  sale,  and  in  case 
the  minor  dies  before  the  sale  is  completed,  said  guardian 
or  agent  must  complete  the  sale  and  pay  the  proceeds  to 
the  minor's  administrator;  but  before  the  order  is  made 
for  the  sale  of  the  property  or  payment  of  the  money  to 

1  Kev.  St.  1909,  §  439.  »  Rev.  St.  1909,  §  440. 


496  FOREIGN   GUARDIANS  §  476 

such  non-resident  guardian,  he  must  show  that  he  has  given 
bond  and  security  as  such  guardian  in  the  state  or  territory 
in  ^vhich  he  and  his  ward  reside,  in  at  least  double  the 
amount  of  the  sum  to  be  paid  him,  or  in  double  the  amount 
of  the  appraised  value  of  the  property  to  be  sold,  by  pro- 
ducing a  copy  of  the  record  setting  forth  his  appointment 
as  guardian,  and,  also,  a  copy  of  his  bond,  certified  accord- 
ing to  the  act  of  Congress  regulating  the  authentication 
of  records.^ 

The  proceedings  for  the  sale  of  real  estate  of  such  non- 
resident ward  by  the  foreign  guardian  should  be  the  same, 
and  conducted  in  the  same  manner,  as  in  the  sale  of  the  real 
estate  of  resident  minors. 

§  477.  Removal  of  Estate  by  Foreign  Guardian. — Where 
the  guardian  and  his  ward  are  both  non-residents,  and  the 
ward  may  be  entitled  to  property  of  any  description  in  Mis- 
souri, the  guardian,  on  producing  to  the  probate  court  in 
the  proper  county  such  evidence  thus  certified,  of  his  ap- 
pointment, and  that  he  has  given  bond  and  security,  as  such 
guardian,  in  the  state  in  which  he  and  his  ward  reside,  in 
double  the  amount  of  the  value  of  the  property,  he  may  de- 
mand or  sue  for  and  remove  such  property  to  the  place  of 
residence  of  himself  and  ward.* 

And  when  such  non-resident  guardian  produces  a  copy 
of  all  the  entries  in  relation  to  his  appointment  and  giving 
bond,  in  the  state  of  his  residence,  duly  authenticated  as  re- 
quired by  act  of  Congress,  as  above  stated,  the  probate  court 
of  the  proper  county  may  authorize  any  resident  guardian, 
executor  or  administrator  to  deliver  such  property  over  to 
the  non-resident  guardian,  requiring  receipts  therefor  to  be 
passed  and  filed,  if  deemed  advisable,  and  discharge  such 
resident  guardian,  or  executor  or  administrator.^  But  in 
all  such  cases  a  reasonable  notice  must  be  given  to  the  resi- 
dent guardian,  executor  or  administrator,  of  the  intended 
application  for  the  order  of  removal ;  and  the  court  may  re- 
ject the  application  and  refuse  such  order,  whenever  it  is 
satisfied  that  it  is  for  the  interest  of  the  ward  that  such  re- 
moval should  take  place. 

3  Rev.  St.  1009,  §  441 ;   Ferneau  v.  Whitford,  39  Mo.  App.  311. 

4  Rev.  St.  lltoy,  §  442. 

5  Rev.  St.  mot),  §  443 ;  Blanchard  v.  Andrews,  90  Mo.  App.  425 ;  In 
re  Wilson,  95  Mo.  1S4,  8  S.  W.  309. 


§  479  FORKKJN    GUARDIANS  497 

§  478.  Same — Matter  of  Comity. — By  the  common  law, 
the  office  of  KU^u'^^i^^^l^P  is  local  to  the  jurisdiction  in 
which  the  appointment  is  made,  and  a  guardian  of  the  per- 
son and  estate  of  a  minor  cannot,  by  virtue  of  his  appoint- 
ment in  the  state  where  he  and  the  ward  are  domiciled, 
claim  as  a  legal  right  to  recover  money  belonging  to  the 
ward  in  the  hands  of  a  guardian  or  curator  of  the  estate  of 
such  ward  resident  in  this  state.  But  a  court  possessing 
general  chancery  jurisdiction  in  such  matters  could  order 
such  funds  to  be  transmitted  or  paid  over  to  the  guardian 
in  another  state  where  the  ward  is  domiciled.  The  statute 
authorizing  the  court  having  probate  jurisdiction  to  order 
the  delivery  and  payment  of  property  and  moneys  to  the 
non-resident  guardians  of  non-resident  minors,  is  but  de- 
claratory of  what,  at  common  law,  a  court  of  equity  might 
in  its  discretion  order  in  the  premises  independent  of  any 
such  statute. 

While  the  power  is  granted  as  heretofore  set  forth  to  pro- 
bate courts  in  this  state  to  order  the  delivery  of  property  of 
a  non-resident  minor  to  his  non-resident  guardian,  the  trans- 
fer to  the  non-resident  guardian  is  not  made  as  a  matter  of 
strict  right.  The  court  in  making  such  order  should  ex- 
ercise a  sound  discretion,  and  if  it  does  not  believe  it  would 
be  for  the  best  interests  of  the  ward  to  grant  it,  the  applica- 
tion for  such  order  should  be  denied.*^ 

§  479.  Domicile  of  Ward — Conflict  of  Guardianship. — 
Ther^  may  be  a  guardianship  in  every  state  or  nation  where 
there  is  estate,  real  or  personal,  of  the  minor,  and  it  may  be 
an  important  matter  to  determine  which  is  the  principal 
and  controlling  authority,  and  which  the  auxiliary  and  sub- 
ordinate. The  place  of  the  infant's  domicile  is  the  place  of 
the  principal  guardianship.  The  domicile  of  origin  arises 
from  birth  and  connection.  The  place  of  birth,  therefore, 
is  considered  the  domicile  of  a  person,  if  it  is  at  the  time 
of  his  birth  the  domicile  of  his  parents.  The  domicile  of 
birth  continues  until  a  new  one  is  acquired.  The  domicile 
of  a  minor  follows  that  of  his  parent  or  guardian,  and  re- 
mains there  until  he  acquires  another,  which  he  cannot  do 
of  his  own  volition,  until  he  becomes  of  full  age.  Therefore 
the  domicile  of  the  parents  at  the  time  of  their  death  is  the 
domicile  of  their  infant  children,  and  they  cannot,  of  their 

•  Blanchard  v.  Andrews,  90  Mo.  App.  425. 
KEL.MO.P.G.— 32 


498  FOREIGN   GUARDIANS  §  479 

own  volition,  change  that  domicile. '^  And  the  domicile  of 
the  ward  under  fourteen  years  of  age  is  not  changed  by  his 
guardian  moving  him  to  another  county,  and  in  case  of  the 
death  of  the  guardian  the  probate  court  in  which  the  parents 
resided  has  jurisdiction  to  appoint  a  successor,  and  not  the 
court  at  the  place  where  the  guardian  died.^ 

After  the  death  of  the  father,  the  presumption  is  that  the 
domicile  of  the  children  follows  that  of  the  mother,  and 
she  may  change  their  domicile  if  she  does  so  in  good  faith, 
yet  such  is  not  always  necessarily  the  case,  for  although 
changing  her  own  domicile  she  may,  from  prudent  mo- 
tives, refuse  to  alter  that  of  her  children.  It  has  been  held 
in  New  York  that  by  a  second  marriage  the  mother  acquires 
the  domicile  of  her  husband,  and  loses  all  power  to  control 
that  of  her  children.®  But  under  our  statute  the  mother 
continues  the  natural  guardian,  and  may  control  the  person 
of  her  child  after  her  second  marriage,  and  it  would  seem 
to  follow  that  while  she  maintains  that  relation  to  it,  she 
may  change  its  domicile  by  changing  her  own. 

§  480,  Same — Place  of  Guardianship — Distribution  of 
Estate. — The  domicile  of  the  parents  at  their  death,  being 
the  domicile  of  their  minor  children,  is  the  place  of  the 
principal  guardianship.  The  distribution  of  personal  prop- 
erty descending  to  such  infants,  wherever  situated,  must 
be  governed  by  the  law  of  that  domicile,  and  the  property 
of  such  minors,  after  a  full  accounting  in  the  domestic  court 
and  the  discharge  of  all  just  claims  upon  it,  should  in  all 
proper  cases  be  transmitted  to  the  guardianship  of  the 
domicile.  The  court  of  the  domicile  is  not  bound  to  re- 
mit the  estate  to  another  state  or  country  for  the  educa- 
tion or  support  of  the  infant. ^*^  The  place  of  domicile  is, 
therefore,  the  proper  place  for  the  residence  and  educa- 
tion of  the  infant,  and -a  court  of  another  state  may  di- 
rect him  to  be  delivered  up  to  be  taken  to  that  place  by 
the  proper  guardian ;  and  although  the  power  of  a  guard- 
ian is  local  to  the  state  in  which  he  receives  his  appoint- 

7  Story's  Conf.  of  Laws,  44 ;  2  Kent,  227,  note ;  Warren  v.  Hofer, 
1.3  Iiul.  167;    Ex  parte  Dawson,  ,3  Bradf.  Sur.  (N.  Y.)  130. 

>*  Marheineke  v.  Grothaus,  72  Mo.  204 ;  Garrison  v.  Lyle,  38  Mo. 
App.  558. 

9  Brown  v.  Lynch,  2  Bradf.  Sur.  (N.  Y.)  214. 

10  Ex  parte  Dawson,  3  Bradf.  Sur.  (N.  Y.)  130. 


§  480  FOREIGN   GUARDIANS  49f) 

ment,  yet  he  is  competent  to  receive  the  property  or  cus- 
tody of  the  ward,  when  placed  in  his  hands  by  the  do- 
mestic court  to  be  taken  to  the  state  where  both  belong. 
But  such  g-uardian,  to  entitle  him  to  receive  the  property 
or  the  custody  of  the  ward,  must  make  proof  of  his  guard- 
ianship." The  court  must  exercise  a  sound  discretion  in 
making  orders  in  such  cases. 

As  to  real  estate,  the,  capacity  of  persons  to  take  or  trans- 
fer it  depends  on  the  law  of  the  country  or  state  where  it 
is  situate.  The  law  of  the  situs  exclusively  governs  as  to 
the  descent  and  heirship  of  real  estate.  So  in  the  convey- 
ance or  transfer  of  it,  either  testamentary  or  inter  vivos, 
the  forms  and  solemnities  required  in  such  cases  by  the  lex 
loci  rei  sitze  must  be  followed.  But  the  rule  is  otherwise 
as  to  personal  estate.  Upon  a  change  of  domicile,  the  ca- 
pacity or  incapacity  of  the  person  is  regulated  by  the  law 
of  the  new  domicile. 

Says  Pothicr:  "The  change  of  domicile  delivers  persons 
from  the  em])ire  of  the  laws  of  the  place  of  the  domicile 
they  have  quitted,  and  subjects  them  to  those  of  the  new 
domicile  they  have  acquired."  But  a  female  whose  domicile 
is  in  a  state  which  fixes  her  majority  at  twenty-one  years, 
being  unable  to  change  her  domicile  of  her  own  volition 
during  her  minority,  does  not,  on  coming  into  this  state 
where  she  is  of  full  age  at  eighteen,  (on  attaining  that  age,) 
become  entitled  to  her  estate  or  release  from  the  control 
of  her  guardian  in  the  former  state.  So,  if  a  female,  who 
is  of  full  age  here,  should  change  her  domicile  to  a  state 
where  the  age  of  majority  is  fixed  at  twenty-one  years,  she 
would,  by  such  change,  be  remitted  to  infancy  until  she  at- 
tained her  majority  under  the  laws  of  the  latter  state. 

And  it  seems  that  the  legislature  of  another  state  cannot 
authorize  a  court  to  remove  the  disabilitv  of  infancy  so  as 
to  authorize  such  infant  to  sue  in  this  state  without  guard- 
ian. Such  a  law  and  proceeding  under  it  could  have  no 
operation  beyond  the  limits  of  the  state  which  authorized 
it.^- 

11  Warren  v.  Ilofer,  1?,  Ind.  IGT. 

12  State,  to  Use  of  (Jillireatli.  v.  Bunce,  0.5  Mo.  .^40. 


500  LOANING   MONEY  §  481 


CHAPTER  XLI 

OF   LOANING  MONEY   AND   CHANGING   INVESTMENT   OF 
WARDS  ESTATE 

§  481.  Money  to  be  loaned  on  real  estate  security. 

482.  Same — Rate  of  interest. 

483.  Changing  investment  of  ward's  estate. 

484.  Mortgage  on  homestead,  how  paid. 

§  481.     Money  to  be  Loaned  on  Real  Estate  Security. — 

The  g-uardian  or  curator  must  manage  the  estate  for  the  best 
interest  of  the  ward.  He  must  not  retain  money  in  his  liands 
in  a  non-productive  state,  but  must  safely  invest  it  upon  ade- 
quate security.  The  statute  has  fully  anticipated  the  duties 
of  the  guardian  or  curator  upon  this  subject,  and  its  direction 
is  very  explicit,  if  not  imperative.  It  provides  that  guardians 
and  curators  shall  loan  the  money  of  their  wards  at  the  high- 
est legal  rate  of  interest  that  can  be  obtained  on  prime  real 
estate  security,  except  where  the  estate  is  less  than  three  hun- 
dred dollars,  in  which  case  good  personal  security  may  be  tak- 
en, and  shall  account  for  all  such  interest  received,  which  shall 
be  charged  in  their  annual  settlements.  The  interest  in  such 
cases  shall  be  payable  annually ;  and  if  not  then  paid,  shall 
become  part  of  the  principal,  and  bear  interest  at  the  same 
rate.^  The  court  must  require  every  guardian  or  curator  to 
make  a  report,  at  every  annual  settlement,  of  the  disposition 
made  of  the  money  entrusted  to  him  belonging  to  his  ward; 
and  if  the  money  is  loaned  out,  he  must  state  the  name  of  the 
person  to  whom  loaned,  the  description  of  the  real  estate  se- 
curity, where  situated  and  its  value,  wdiich  report  must  be 
sworn  to  by  said  guardian  or  curator,  and  filed  in  the  court ; 
and  the  court  must  carefully  examine  such  report  as  soon  as 
made,  and  if  in  the  opinion  of  the  court  the  security  is  insuf- 
ficient, it  will  require  additional  security  to  be  given,  sui^cient 
to  protect  the  interests  of  the  ward ;  and  if  such  additional 
security  be  not  given  within  such  time  as  the  court  shall  order, 
not  exceeding  ten  days,  the  guardian  or  curator  must  institute 
suit  forthwith  on  such  security  to  recover  the  amount  due 
thereon;  and  he  and  his  securities  will  be  liable  on  their  bond 
for  any  omission  so  to  do.     If  the  money  has  not  been  loaned 

1  Rev.  St.  1909,  §  444 ;  Payne  v.  King,  '.^S  Mo.  502. 


§   482  LOANING   MONEY  501 

out,  the  guardian  or  curator  must  state  the  fact  and  the  reason 
in  his  report,  which  must  be  sworn  to,  and  unless  it  has  been 
used  in  improving-  the  real  estate  of  the  ward,  he  must  state 
that  he  has  been  unable  to  make  such  loan,  after  diligent  effort 
so  to  do;  and  if  the  guardian  or  curator  refuse  or  neglect  to 
make  such  rej^ort,  at  the  time  aforesaid,  or  shall  make  a  false 
rei)ort  thereof,  he  and  his  securities  shall  be  liable  on  their 
bond  for  all  loss  or  damage  to  such  ward,  occasioned  by  rea- 
son of  such  neglect  or  refusal  so  to  report,  or  by  the  making 
of  such  false  report ;  and  such  guardian  or  curator  may,  on 
account  thereof,  be  removed  from  his  trust,  in  the  discretion 
of  the  court. - 

Whenever  it  shall  appear  that  it  would  be  for  the  benefit  of 
the  ward  that  his  real  estate,  or  any  part  of  it,  should  be  im- 
proved, the  court,  upon  petition  of  the  guardian  or  curator, 
may,  after  full  examination  of  disinterested  witnesses,  author- 
ize the  investment  of  the  money  of  the  ward,  or  any  part  there- 
of, in  the  improvement  of  said  real  estate,  under  the  direction 
of  the  court,  but  the  improvement  must  not  exceed  the  money 
actually  on  hand  and  must  not  interfere  with  the  fund  needed 
for  the  education  and  maintenance  of  the  ward.^ 

§  482.  Same — Rate  of  Interest. — The  guardian  or  cura- 
tor, upon  loaning  money  of  the  ward,  should  take  the  note 
of  the  borrower  therefor  at  the  highest  legal  rate  of  interest 
that  can  be  obtained,  and  have  the  same  secured  by  a  mortgage 
or  deed  of  trust  on  prime  real  estate,  that  is.  real  estate  to 
which  the  title  is  good,  and  which  is  unincumbered  and 
of  value  sufficient  to  guarantee  the  repayment  of  the  nuoney 
under  any  contingency  or  circumstances  that  may  arise. 
The  notes  should  be  made  payable  to  the  guardian  or  cu- 
rator, as  such,  and  the  deed  of  trust  or  mortgage  should 
also  be  made  to  him  in  the  same  way.  The  usual  forms  of 
notes  and  mortgages,  or  deeds  of  trust,  may  be  adopted.  The 
notes  should  bear  compound  interest,  but  the  note  will  draw 
compound  interest  though  not  so  expressed  in  the  note*  A 
guardian  having  money  of  his  ward  which  he  could  loan  out 
at  interest  but  does  not.  will,  when  called  to  account.  ])-c 
charged  with  the  interest  at  the  highest  legal  rate  that  could 
have  been  obtained  for  it.  with  annual  additions  of  the  inter- 

2  Rev.  St.  IflOO.  §  444 ;  Tearson  v.  Ilaydel,  ST  Mo.  App.  49.") ;  Tay- 
lor V.  Hite.  61  Mo.  142;   In  re  Curatorsliip  of  White.  13  Mo.  App.  580. 

3  Rev.  St.  11)00,  §  444.  *  Payne  v.  King,  38  Mo.  502. 


502  LOANING    MONEY  §  482 

est  to  the  principal,  but  he  should  be  allowed  such  sum  as  com- 
mission as  he  would  be  entitled  to,  had  he  loaned  the  money 
at  such  rate   of   interest.^ 

The  guardian  must  use  reasonable  care  in  the  management 
of  his  ward's  estate,  and  if  he  fails  to  do  so,  he  will  be  liable 
on  his  bond  for  any  loss.  Thus  where  a  guardian  loaned  his 
ward's  money  on  real  estate  security,  and  during  the  civil  war 
it  was  difficult  to  loan  money,  and  property  was  unsalable,  and 
the  money  was  not  needed  for  the  ward's  support,  he  fore- 
closed the  mortgage  and  forced  a  sale  at  a  great  sacrifice.  He 
was  held  for  the  full  amount  of  the  money  loaned  and  inter- 
est.'' 

But  the  general  rule  is  that  if  the  guardian  acts  with  ordi- 
nary prudence  in  the  investment  of  the  funds  of  his  ward — 
that  means  he  exercises  the  care  and  judgment  an  ordinary 
business  man  would  use  in  the  investment  of  other  people's 
money — if  he  fully  believes  the  security  is  ample  and  is  jus- 
tified in  this  belief,  neither  he  nor  his  sureties  will  be  held  to 
account  for  subsequent  depreciation  which  results  in  partial 
loss  of  funds  so  invested.'^ 

§  483.  Changing  Investment. — The  court  may  order  and 
direct  any  change  to  be  made  in  the  investment  of  the  estate 
of  any  ward  that  may  seem  advantageous  to  his  estate.  It  may 
order  real  estate  to  be  sold  and  the  proceeds  re-invested.  So, 
when  money  is  to  be  laid  out  in  land,  the  authority  of  the 
court  must  be  invoked,  and  the  proper  order  therefor  obtained, 
otherwise  the  ward  will  have  the  right,  when  he  comes  of  age, 
to  elect  between  the  investment  made  by  his  guardian  without 
authority,  or  his  money  and  interest.  Indeed,  the  guardian 
has  no  right  to  make  such  change  in  the  investment  of  the 
ward's  estate  as  aft'ects  the  character  of  the  property  of  the 
ward,  without  first  obtaining  authority  from  the  court,  and  in 
doing  so  he  acts  at  his  peril. ^  And  it  has  been  held  that  the 
probate  court  had  no  power  to  permit  a  guardian  to  buy  lands 
by  paying  part  cash,  and  to  bind  the  ward  for  the  balance  of 
the  purchase  money,  especially  where  he  has  no  estate  to  meet 
the  balance."     But  where  the  ward  took  land  of  the  guardian 

B  Frost  V.  Winston,  32  Mo.  489 ;   Tayne  v.  King,  38  Mo.  502. 

6  Taylor  v.  Hite,  Cl  Mo.  142. 

7  State  V.  Slevin,  93  Mo.  253,  6  S.  W.  68,  3  Am.  St.  Rep.  526. 

8  Ricliardson  v.  Ricliardson,  49  Mo.  29 ;  West  v.  Wheat's  Adm'r,  75 
Mo.  204. 

9  Woods  V.  Boots,  60  Mo.  546. 


§  484  LOANING    MONEY  503 

and  held  it  for  five  years,  he  was  estopped  to  deny  the  pro- 
priety of  the  transaction  and  the  guardian  was  given  credit 
for  wiiat  it  cost.^'^ 

A  guardian  or  curator  is  without  authority,  except  on  order 
of  probate  court,  to  accept  an  interest  in  a  corporation  in  Heu 
of  the  interest  his  ward  was  entitled  to  in  the  estate  of  his  de- 
ceased parent.  This  follows  from  the  fact  that  the  manner  of 
the  investment  of  the  ward's  fund  is  regulated  by  law,  and  it 
is  not  within  power  of  guardian  or  curator  to  change  nature 
of  estate  at  pleasure. ^^ 

§  484.  Mortgage  on  Homestead,  How  Paid. — When  to 
the  interest  of  minors  or  insane  persons,  the  probate  court 
may  authorize  the  guardians  or  curators  to  pay  the  mortgage 
indebtedness  on  the  homestead  or  other  real  estate  of  such 
minor  or  insane  person  out  of  the  personal  estate;  but  to 
authorize  the  payment  of  the  mortgage  on  the  homestead  of 
minors,  they  must  be  the  sole  heirs  to  said  homestead.^' 

10  In  re  Wood,  71  Mo.  G2.3. 

11  Davidson  v.  I.  M.  Davidson  Real  Estate  &  Investment  Co.,  226 
Mo.  1,  125  S.  W.  114.-].  i:56  Am.  St.  Rep.  615. 

12  Rev.  St.  1909,  §  445. 


504  ANNUAL  SETTLEMENTS  §  485 


CHAPTER  XLII 

ANNUAL    ACCOUNTS    AND     .SETTLEMENTS    OF    GUARDIANS 
AND  CURATORS 

§  4S5.     Docket  to  be  called — When. 

486.  Settlement,  when  to  be  made — Allowances  for  support  of 

ward. 

487.  Account  of  expenditures — Receipts. 

488.  Form  of  account. 

489.  Discharges,  acquittances  and  receipts. 

§  485.  Dockets  to  be  Called. — The  law  providing  for  a 
docket  to  be  made  of  guardians'  and  curators'  settlements 
is  similar  to  that  applicable  to  executors  and  administra- 
tors, except  that  it  limits  the  cost  of  publishing  it  to  not  ex- 
ceeding twenty  cents  for  each  estate,  and  if  there  be  no 
newspaper  published  in  the  county,  a  copy  of  the  docket 
must  be  posted  by  the  clerk  in  some  conspicuous  place  in 
his  office.^  It  should  contain  a  list  of  all  cases  in  which 
settlements  are  due  from  executors  and  administrators  and 
from  guardians  and  curators,  and  on  the  day  so  appointed 
each  guardian  or  curator  should  appear  and  make  his  set- 
tlement, unless,  for  good  cause  shown,  it  be  postponed  to 
another  day  or  term.  It  will  be  observed  that  probate 
courts  have  the  power,  and  it  is  their  duty,  to  compel  guard- 
ians and  curators  to  render  their  accounts  in  the  proper 
manner  and  at  the  proper  time  but  guardians  seldom  await 
the  compulsory  action  of  the  court,  but  present  their  ac- 
counts once  a  year,  as  the  law  requires.  The  proceedings 
to  enforce  settlements  by  guardians  and  curators  are  sub- 
stantially the  same  as  those  to  compel  executors  and  admin- 
istrators to  make  settlements,  and  the  forms  used  in  such 
cases  may  be  readily  modified  and  made  applicable  to 
guardians  and  curators. 

The  statute  provides  that  on  the  day  for  which  their  set- 
tlements are  docketed  the  court  will  call  the  names  of  the 
guardians  and  curators,  and  if  any  one  fails  to  appear  and 
make  settlement,  the  clerk  must  immediately  issue  a  cita- 
tion requiring  him  within  thirty  days  to  make  settlement, 
and  show  cause,  if  any  he  have,  why  attachment  should  not 
issue  against  him  for  failing  to  make  settlement.^     Such  ci- 

1  Rev.  St.  1909,  §  447.  2  Rev.  St.  1909,  §  448. 


§  486  ANNUAL  SETTLEMENTS  505 

tation  may  be  directed  to  any  county  in  which  the  guardian 
or  curator  resides  or  may  be  found,  and  served  as  a  sum- 
mons in  civil  cases,  and  if  it  be  returned  not  served,  the 
clerk  must  issue  an  alias  citation,  which  must  be  published 
in  like  manner  as  orders  of  publication  ai;ainst  nonresident 
defendants  in  civil  cases.''  If  the  guardian  or  curator  ap- 
pears after  service  or  publication  of  the  citation  and  makes 
settlement,  he  must  be  fined  not  exceeding  one  hundred  dol- 
lars for  failure  to  make  settlement  at  the  proper  term,  un- 
less he  satisfies  the  court  that  it  was  impracticable  to  do  so. 
The  fine  must  be  paid  into  the  county  treasury;  and  the 
guardian  or  curator  and  his  sureties  are  liable  for  the  same 
upon  their  bonds.*  If  he  fails  to  settle  after  having  been 
cited,  and  does  not  show  cause  for  a  continuance,  in  addi- 
tion to  the  fine  provided  for,  the  court  will  revoke  his  ap- 
pointment and  compel  him  to  settle  by  attachment  or  other 
process,  and  appoint  a  successor,  and  no  guardian  or  cura- 
tor whose  appointment  has  been  thus  revoked  can  be  ap- 
pointed again  to  such  office  within  two  years  thereafter.^ 

§  486.  Settlement,  When  to  be  Made. — The  statute  pro- 
vides that  guardians  and  curators  shall  make  annual  settle- 
ments of  their  accounts  with  the  court  in  which  their  pro- 
ceedings shall  be,  until  the  final  settlement;  and  in  such 
settlement  guardians  shall  make  a  statement,  on  oath,  of 
the  application  of  all  moneys  expended  by  them  for  the  edu- 
cation, support,  or  maintenance  of  their  wards,  as  well  as 
for  moneys  expended  for  the  preservation  of  their  estates, 
or  otherwise.® 

In  some  cases  courts  will  allow  compensation  for  past 
maintenance,  but  never  where  the  infant  has  been  taken  and 
brought  up  as  a  member  of  the  family,  without  any  claim 
or  expectation  of  pay  from  its  estate,  and  a  guardian  pay- 
ing such  a  claim  is  not  entitled  to  credit  therefor,  and  the 
verbal  directions  of  the  probate  court  will  not  protect  him.^ 
And  an  allowance  made  to  a  guardian  for  the  support  of  his 
ward  was  set  aside  at  the  final  settlement,  where  the  evi- 

8  Rev.   St.  1909.  §  449. 
*  Rev.  St.  1909,  §  450. 

5  Rev.  St.  1909,  §  451 ;  Finney  v.  State,  to  Use  of  Estiss,  9  Mo. 
227 :    State,  to  Use  of  Wolf.  v.  Engelke,  6  Mo.  App.  35G. 

6  Rev.  St.  1909,  §  446. 

7  Folger  V.  Heidel.  (50  Mo.  2S4 ;  Otte  v.  Becton,  55  Mo.  99 ;  In  re 
Tucker,  74  Mo.  App.  ."i-Sl. 


506  ANNUAL   SETTLEMENTS  §  486 

dence  showed  that  the  services  of  the  ward  exceeded  the  val- 
ue of  his  board,  clothing,  tuition,  etc.^  The  rule  is  that 
where  a  minor  has  been  reared  as  a  member  of  the  family 
of  the  parent  or  guardian,  no  allowance  will  be  made  out  ot 
its  estate  for  its  support,  unless  there  was  an  intention  on 
the  part  of  such  parent  or  guardian  to  make  a  charge  there- 
for at  the  time  the  support  was  given,  which  fact  must  be 
determined  from  all  the  circumstances.^ 

Services  of  a  ward  rendered  to  a  guardian  are  assets  of 
the  guardianship,  claims  for  which  may  be  adjudicated  in 
the  proceedings  for  the  final  settlement  of  the  guardian's  ac- 
counts.^" 

§  487.  Account  of  Expenditures — Receipts. — The  guard- 
ian, as  he  is  required  to  render  an  account,  must  keep  one 
from  which  his  reports  can  be  regularly  and  intelligently 
made  to  the  court;  and  the  only  reliable  mode  of  doing  this 
is  by  an  entry  in  a  book  to  be  kept  for  the  purpose,  made  in 
the  form  of  a  debit  and  credit  at  the  time  of  each  receipt  or 
payment,  showing  from  whom  received  or  to  whom  paid 
and  on  what  account  received  or  paid.  If  this  is  done  there 
can  be  no  confusion  in  the  account,  but  if  memory  alone  is 
depended  upon,  even  a  competent  accountant  may  be  un- 
able to  unravel  the  complications  in  which  an  estate  of  no 
great  magnitude  will  become  involved.  The  guardian  must 
keep  an  account  with  each  of  his  wards,  if  there  be  several. 
The  sums  received  in  behalf  of  each  should  be  separately 
stated.  The  accounts  should  be  kept  the  same  as  business 
men  keep  their  books. 

The  guardian,  in  paying  out  money  for  his  ward  on  ac- 
count, should  take  a  bill  of  the  items  of  the  person  to  whom 
he  pays  the  money,  with  a  receipt  for  the  payment  of  the 
same.  If  he  deals  with  a  merchant  on  behalf  of  his  ward, 
when  he  settles  the  account,  he  should  take  a  bill  of  the 
items  and  the  price  of  the  same,  that  the  court  may  be  ad- 
vised, and  see  that  the  articles  purchased  are  necessary  and 
suitable  to  the  condition  in  life  of  the  ward,  and  for  the  ben- 
efit of  the  ward,  who  may  desire  to  review  the  expenditures 
of  his  guardian,  and  know  whether  they  have  been  economi- 
cal and  prudent,  or  extravagant  and  wasteful. 

8  Kidd  V.  Gulbar,  63  Mo.  342. 

»  In  re  Tucker,  74  Mo.  App.  331 ;  State  v.  Slevin,  93  Mo.  253,  6  S. 
W.  68,  3  Am.  St.  Rep.  526. 

10  Ackermann  v.  Haumueller,  148  Mo.  App.  400,  128  S,  W.  51-56. 


§  488  ANNUAL   SETTLEMENTS  507 

§  488.     Form  of  Annual  Account  of  guardian  or  curator : 

Form  of  Guardian  s  Account 

In  the  matter  of  the  estate   ^  j^  ^^^^  i^^-oW,^^  Court  of county, 

of  Oliver  Roe,  John  Doe,   ^     ^   ^    ic)_. 

guardian.  J 

John  Doe,  guardian  of  the  person  and  estate  of  Oliver  Koe,  minor 
heir  of  John  lioe,  deceased,  would  respectfully  submit  to  the  court 
the  following,  as  the  first  annual  settlement  account  of  his  guard- 
ianship: 

lie  charges  himself  with  cash  received  of  J.  T.,  administra- 
tor of  the  estate  of  John  lioe,  deceased,  on  the day 

of ,  ID— $    100.00 

"With  cash  received  of  K.  W.  for  rent,  or  lease,  on  the 

day  of ,  19— ooO.OO 

Witli  cash  received  of  L.  M.,  on  his  note,  on  the day 

of  ,    19— 580.00 

§1,230.00 

He  claims   credit    for   the   following   disburse- 
ments: 
Am't    paid    John    Dobbs,    clerk's    fees,     vouclier 

No.    1 $       5.00 

Am't  paid  D.   C.   Scott,  taxes  for  1871,   voucher 

No.    2 31.00 

Am't  paid  J.  J.  Davis,  att'y  fee  for  this  report, 

voucher  No.  3 5.00 

Am't   paid   John   Lyner,   for   clothing   for    ward, 

voucher  No.  4 22.00 

Am't  paid  Pat  Regan,  for  shoes,  voucher  No.  5  7.00 
Am't  paid  Thos.  Austin,  for  board,  voucher  No.  6  89.00 
Am't   paid    Northwestern   C.   University,   tuition, 

voucher  No.  7 30.00 

Am't   paid   Guardian   services   to    date,    voucher 

No.   8 20.00 

Tot.il   credits $    209.00 

Balance  due  the  ward 1,021.00 


$1,230.00     $1,230.00 

Said  guardian  would  report  that  he  has  loaned  one  thousand  dol- 
lars of  the  money   belonging  to  said  ward  to  John  Jay,   of 


county,  and  taken  his  note  for  the  same,  at  8  per  cent  interest  per 
annum,  dated  December  13,  19 — ,  and  due  twelve  months  after  date, 
and  the  same  is  secured  by  a  deed  of  trust  on  the  southeast  quarter, 

of  section  10,  township  59,  range  .*JG.  situate  in  the  county  of , 

in  the  state  of ,  of  the  value  of  three  thousand  dollars,  which 

note  and  deed  of  trust  are  here  now  produced  and  shown  to  the 
court.     Said  guardian  also  states,  that  in  accordance  with  the  order 

of  the  court,  made  at  the  term,  19—,  he  has  expended  for 

boarding,  clothing,  and  tuition  for  his  said  ward,  the  several  sums 
set  forth  in  the  account  of  disbursements  herewith  presented ;    and 


508  ANNUAL   SETTLEMENTS  §  488 

lie  would  ask  the  court  to  order  a  further  sum  to  be  used  for  the 
completion  of  the  education  of  said  ward,  etc. 

JOHN  DOE, 

Guardian. 
John  Doe,  guardian  of  Oliver  Roe,  makes  oath  and  says,  that  the 
foregoing  is  a  just,  full  and  perfect  account  and  statement  of  all 
moneys  and  effects  received  and  paid  out  by  him  for  and  on  account 
of  his  said  ward,  from  the  time  of  his  appointment  (or  last  settle- 
ment) to  the  day  of  ,  19 — ;  and  also,  of  the  disposi- 
tion made  of  the  money  of  said  ward  entrusted  to  his  care. 

JOHN  DOE, 

Guardian. 

Subscribed  and  sworn  to  before  me,  this  day  of  , 

19—.  J.  R.  C. 

(Style  of  office.) 

The  proceedings  in  court,  and  the  reports,  accounts  and 
settlements  of  guardians  are  so  much  like  those  of  execu- 
tors and  administrators' in  relation  to  decedents'  estates  that 
the  same  forms  may  be  used,  requiring  but  little  change. 
It  would  seem,  therefore,  to  be  useless  to  repeat  them  here. 
We  may  repeat,  however,  that  annual  settlements  are  sim- 
ply exhibits  of  the  guardian's  accounts,  and  the  entries  of 
record  in  relation  to  such  settlements  are  not  judgments 
and  do  not  conclude  the  ward  or  anybody  else;^^  but  a 
final  settlement  regularly  made  upon  notice  has  the  force 
of  a  final  judgment,  and  is  conclusive  upon  all  concerned, 
unless  impeached  for  fraud  or  mistake  in  a  court  of  equity. ^^ 

§  489.  Discharges,  Acquittances  and  Receipts,  given  by 
guardians  and  curators  during  the  continuance  of  their  re- 
spective offices  for  any  debts,  rents  or  other  moneys  or 
property  due  to  their  wards  are  valid  in  favor  of  all  persons 
who  take  them  in  good  faith,  but  guardians  and  curators 
and  their  securities  will  be  liable  to  the  party  injured  if 
such  discharges,  acquittances  or  receipts  are  given  illegally 
or  fraudulently.^^  It  has  been  held  that  a  guardian  has  not 
power  to  release  a  debt  due  to  his  ward.^*  But  he  may  do 
so  under  the  statute  so  far  as  the  debtor  is  concerned,  but 
he  would  be  liable  to  account  to  the  ward  for  the  same,  if 
the  release  or  discharge  was  not  proper. 

11  Sheetz  v.  Kirtley,  62  Mo.  417;  Kidd  v.  Guibar,  6.3  Mo.  .342;  West 
V.  West's  Adm'r,  7.5  Mo.  204 ;  Myers  v.  Myers,  98  Mo.  262,  11  S.  W. 
617;  In  re  Hutton's  Estate,  92  Mo.  App.  132;  State,  to  Use  of 
Thornton,  v.  Hoster,  61  Mo.  544 ;  State,  to  Use  of  Hermann,  v.  Mil- 
ler, 44  Mo.  App.  118. 

12  State,  to  Use  of  Thornton,  v.  Hoster,  61  Mo.  544;  Woodworth  v, 
Woodworth.  70  Mo.  TjOI. 

13  Rev.  St.  1909,  §  4.52.  i4  Horine  v.  Horine,  11  Mo.  649. 


§  491  FINAL   SKTTLEMENT8  509 


CHAPTER  XLIII 

FINAL    SETTLEMENT    AM)    DISCUARiiE    OF    OFARDIAN    OR 
CIHATUK  AND  MATTERS  CONNECTED  THEREWITH 

§  4!»().  Final  settlement — When  to  be  made. 

41>1.  Settlement  on  death  of  ward. 

492.  Same — In  case  of  non-resident  ward. 

493.  Final  settlement  account,  and  notice  thereof. 

494.  Effect  of  final  settlement. 

495.  Liability  of  ward  to  guardian. 

496.  Final  discbarge  of  guardian. 

497.  Compensation  of  guardian. 

498.  Removal,  resignation,  etc.,  of  guardian. 

499.  Appeals. 

§  490.  When  to  be  Made. — Every  guardian  or  curator 
continues  in  office,  unless  sooner  discharged,  according  to 
law,  until  the  wards  arrive  at  full  age,  or,  if  a  female,  until 
her  marriage,  if  that  event  first  happens.  Males  are  of  age 
at  twenty-one,  and  females  at  eighteen  years  of  age.  The 
death  of  the  ward,  of  course,  terminates  the  guardianship. 

It  is  the  duty  of  a  guardian,  at  the  expiration  of  his  trust, 
fully  to  account  for  and  pay  over  to  the  proper  person,  or 
persons,  all  the  estate  of  his  ward  remaining  in  his  hands, 
and  take  the  proper  receipt  therefor ;  and  he  must  make 
a  just  and  true  exhibit  of  the  account  between  himself  and 
his  ward,  for  the  purpose  of  a  final  settlement  of  his  guar- 
dianship accounts,  and  file  the  same  with  the  court.  The 
account  should  state  the  balance  appearing  in  his  hands  by 
the  last  report  with  all  other  sums  that  have  come  into  his 
hands  since  its  date,  and  all  disbursements  with  the  vouch- 
ers therefor,  and  close  with  the  voucher  of  the  ward  for 
the  balance  shown  to  be  due,  after  allowing  the  guardian's 
compensation  for  his  services. 

§  49 L  Settlement  on  Death  of  Ward. — If  the  minor,  be- 
ing unmarried,  dies  possessed  of  property,  real  or  personal, 
no  letters  of  administration  will  be  granted  on  his  estate, 
but  the  court  will  order  his  guardian  or  curator  to  distribute 
and  pay  over  to  those  interested  as  distributees,  the  personal 
estate  of  such  minor.  But  if  the  minor  leave  demands  for 
which  his  estate  would  be  liable  in  an  action,  or  leave  a 
will,  valid  under  the  law  respecting  wills,  letters  testamen- 


510  FINAL   SETTLEMENTS  §  491 

tarv  or  of  administration  must  be  granted  on  the  estate  of 
such  deceased  minor,  as  in  the  case  of  other  testators  or 
intestates.^ 

In  such  a  case  the  guardian  should  report  the  condition 
of  the  estate  of  his  ward  to  the  court  and  obtain  an  order 
of  distribution  among  the  proper  distributees,  or  if  there 
be  an  administrator,  an  order  to  pay  the  estate  in  his  hands 
over  to  such  administrator;  and  upon  complying  with  such 
order,  he  should  take  the  proper  vouchers  therefor,  and 
then  proceed  to  obtain  his  final  discharge  as  in  other  cases. 
If  the  ward  dies  and  leaves  a  widow,  she  would  be  entitled 
to  allowances,  and  the  estate  should  be  settled  as  estates 
of  other  deceased  persons.^ 

§  492.  Settlement  in  Case  of  Non-Resident  Ward.— If 
it  be  made  to  appear  to  the  court  that  the  ward  is  not  a  resi- 
dent of  this  state,  and  has  a  guardian  in  the  state  or  terri- 
tory of  his  residence,  the  court  may  authorize  or  compel 
the  guardian  or  curator  of  such  minor  heir,  to  deliver  over 
to  such  foreign  guardian,  all  the  property  in  his  custody 
belonging  to  such  minor,  and  make  a  full  and  perfect  set- 
tlement of  his  trust  with  such  foreign  guardian ;  and  the 
receipt  of  the  foreign  guardian  will  fully  discharge  the  resi- 
dent guardian  or  curator  and  his  securities  from  all  liability 
on  account  of  the  property  so  delivered  to  such  foreign  guar- 
dian.^ Before  granting  the  order  for  the  delivery  of  the 
ward's  property  to  a  foreign  guardian,  the  court  should  re- 
quire him  to  produce  the  proper  evidence  of  his  appointment 
and  of  the  execution  of  a  sufficient  bond,  duly  certified  and 
authenticated  according  to  the  act  of  congress  regulating 
the  authentication  of  records. 

§  493.  Final  Settlement  and  Notice  Thereof. — Guardians 
and  curators  must  make  final  settlement  upon  cessation  of 
their  authority,  whether  by  revocation  of  their  appointment, 
resignation  or  the  majority  of  their  wards,  or  the  marriage 
of  female  wards,  and  for  that  purpose  he  must  make  a  just 
and  true  exhibit  of  the  account  between  himself  and  his 
ward,  and  file  the  same  in  the  court  having  jurisdiction 
thereof.  The  exhibit  or  account  for  the  purpose  of  a  final 
settlement  may  be  in  the  following  form  : 

1  Rev.  St.  1909,  §§  4,53,  454 ;    Norton  v.  Thompson,  GS  Mo.  143. 

2  Norton  V.  Thompson,  G8  Mo.  143. 

3  Rev.  St.  1909,  §  455. 


493  FINAL   SETTLEMENTS  511 


Final  Settlement  of  Account 

\\n  th 
I     Ter 


State  of  Missouri,     |In  the  I'robate  Court  of  County,  

County  of  .  j     Term,  A.  D.  19 — . 

In  the  matter  of  the  estate  1 

Of  Oliver  Koe,  minor,         I  Final  Settlement. 

John  Doe,  guardian.  j 

John  Doe,  guardian  of  the  person  and  estiite  of  Oliver  Roe,  minor 
heir  of  John  lioe,  deceased,  would  respectfully  submit  to  the  court 
the  following  account  for  linal  settlement  of  his  guardianship;  the 
said  Oliver  Koe  having  attained  his  majority  on  the  25th  day  of 
March,  11)—. 

He  charges  himself  in  account  with  the  estate  of  Oliver  Roe,  his 
ward,  as  follows: 

To  Amount  received  of  John  Jay,  nioiify  loaned,  as  shown 

by  his  last  settlement ?1.000.00 

Interest  on  same 100.00 

To  rents  and  profits  of  real  estate  of  ward  from  the 

day  of ,  19—,  to  the day  of ,  19—. . .        125.00 

To  balance  in  his  hands  as  per  last  report 21.00 

Total    receipts $l,24G.0O 

He  claims  credit  for  moneys  expended,  and  expenses  incurred  in 
behalf  of  said  ward  by  order  of  the  court,  as  follows: 

By  amount  paid  D.  C.  S.  for  taxes  of  19 — ,  voucher  No.  1. .   $  71.00 

"             "       John  Wall  for  boarding,  voucher  No.  2....  SO.OO 

"             "       R,  Gray  for  tuition,  voucher  No.  3 31.00 

"             "       T.  Austin  for  clothing,  voucher  No.  4 4;}.00 

*•             "       J.  C.  R.,  clerk's  fees,  voucher  No.  5 30.00 

"             "       J.  J.  D.,  attorney's  fees,  voucher  No.  G 25.00 

By  amount  I  claim  for  my  services  as  guardian,  as  per  ac- 
count herewith  filed,  voucher  No.  7 50.00 

By  amount  paid  over  to  said  Oliver  Roe,  on  attaining  his 

majority  as  per  voucher  No.  S 850.00 

Total   credits ?1,1S0.00 

Balance  in  hands  of  guardian  for  expenses,  etc.,  which  may 

yet    occur 66.00 


$1,246.00 
JOHN  DOE,  Guardian. 

John  Doe,  guardian  of  Oliver  Roe,  malces  oath  and  says  that  the 
foregoing  is  a  just  and  true  exhibit  of  the  account  between  himself 
and  his  ward  of  all  moneys  and  effects  received  and  paid  out  by 
him  for  and  on  nccount  of  his  said  ward,  since  his  last  annual  set- 
tlement. JOHN  DOE,  Guardian. 

Subscribed  and  sworn  to  before  me  this day  of ,  19 — . 

J.  R.  C. 
(Style  of  otlice.) 

When  the  account  is  made  out  and  filed  with  the  court 
for  the  purpose  of  a  final  settlement  the  guardian  must  cause 


512  FINAL   SETTLEMENTS  §  493 

a  copy  of  such  exhibit,  together  with  a  written  notice,  stat- 
ing the  day  on  which,  and  the  court  in  which  he  will  make 
such  settlement,  to  be  delivered  to  his  ward,  or  in  the  case 
of  the  marriage  of  a  female  ward,  to  the  ward  and  her  hus- 
band, or  in  case  of  revocation  or  resignation,  to  the  succeed- 
ing guardian  or  curator,  at  least  four  weeks  before  the  first 
day  of  the  term  at  which  such  settlement  is  to  be  made; 
and  if  for  an}^  cause  a  copy  of  such  exhibit  and  such  written 
notice  cannot  be  delivered  to  the  ward  or  other  person  en- 
titled thereto,  the  court  may  order  notice  of  the  filing  of 
such  exhibit,  and  of  the  time  and  place  at  which  final  set- 
tlement is  to  be  made,  to  be  given  by  publication  for  four 
weeks  next  before  the  first  day  of  the  term  at  which  such 
settlement  is  to  be  made,  in  some  newspaper  printed  in 
the  English  language  and  published  in  the  county,  if  there 
be  one,  and  if  not,  then  by  printed  hand  bills  put  up  in  at 
least  six  of  the  most  public  places  in  the  county,  to  be  des- 
ignated by  the  court.  At  the  time  specified  in  the  notice, 
upon  satisfactory  proof  that  notice  has  been  served  or  given 
as  required  by  the  court,  the  court  must  proceed  to  examine 
the  accounts  of  the  guardian  or  curator,  correct  all  errors 
therein,  if  any  there  be,  and  make  a  final  settlement  with 
said  guardian  or  curator;  or  the  court  may  for  good  cause 
continue  the  settlement  and  proceed  therein  at  any  time 
agreed  upon  by  the  parties,  or  fixed  by  the  court.* 


Notice  of  Final  Settlement 


State  of  Missouri, 
County  of  


In  the  matter  of  the  estate 

of  Oliver  Roe,  minor,  K.  In  the  Probate  Court  of -County. 

John  Doe,  guardian.  j 

To  Oliver  Roe  (or  other  persons  to  be  notified.) 

You  are  hereby  notified  that  on  tlie day  of ,  19 — ,  be- 
ing the  day  of  the term,  19 — ,  of  the  probate  court  of 

the  county  of ,  or  as  soon  thereafter  as  I  can  be  heard  at  said 

court,  I  will  make  to  and  with  said  court,  my  final  settlement  as 

guardian  of  the  estate  of  Oliver  Roe,  minor  heir  of ,  deceased, 

that  a  just  and  true  exhibit  of  the  account  between  my.self  and  said 
ward  has  been  made  and  filed  in  said  probate  court,  and  a  true 
copy  of  such  exhibit  is  hereto  annexed  and  herewith  delivered  to 
you. 

Dated  this  day  of ,  A.  D.  19—. 

JOHN  DOE,  Guardian. 

4  Rev.  St.  1909,  §  45G. 


§  494  FINAL   SETTLEMENTS  513 

The  notice  must  be  varied  in  form  to  suit  the  facts  and 
comply  with  the  law,  and  it  must  be  given  or  published, 
as  the  case  may  be,  four  weeks  before  the  first  day  of  the 
term  at  which  settlement  is  to  be  made.  There  must  be 
twenty-eight  days  between  the  first  insertion  and  the  first 
dav  of  the  term  or  time  at  which  the  settlement  is  to  be 
made.''  If  the  notice  be  insufficient,  the  settlement,  though 
intended  as  a  final  one,  will  only  have  the  force  and  effect 
of  an  annual  settlement.''  The  proof  of  the  service  or  giv- 
ing of  the  notice  may  be  made  in  the  same  manner  as  in 
other  notices  required  to  be  given — by  the  return  of  an  of- 
ficer or  by  the  affidavit  of  the  person  who  served  it,  or  by 
the  affidavit  of  the  publisher. 

The  court  having  examined  and  passed  on  the  settlement, 
will  order  jiayment  of  the  amount  found  to  be  due,  and  the 
rendition  of  any  eft'ects,  property,  rights  or  credits  belong- 
ing to  the  ward,  to  such  ward  having  attained  majority,  or 
to  the  successor  of  such  guardian  or  curator,  as  the  case 
may  be,  and  enforce  such  order  by  attachment  against  the 
guardian  or  curator  and  his  sureties.^  It  is  the  duty  of  the 
bondsmen  of  the  guardian  to  see  that  the  money  is  paid 
over  as  ordered  by  the  court. ^  And  if  the  guardian  or  cu- 
rator fails  to  pay  the  money  so  ordered  to  be  paid,  the  same 
proceedings  may  be  had  against  him  and  his  sureties  to 
compel  such  payments  as  are  authorized  in  cases  where  an 
executor  or  administrator  fails,  when  ordered  to  pay  de- 
mands against  an  estate.^    This  remedy  is  cumulative.^*' 

If  the  report  is  accepted  and  approved  by  the  court,  an 
entry  should  be  made  of  record  to  that  effect,  and  also  dis- 
charging formally  the  guardian  from  all  further  duties  and 
liabilities  as  such  guardian. 

§  494.  Effect  of  Final  Settlement. — The  final  settlement 
and  allowances  of  a  guardian  in  the  probate  court,  in  the 
matter  of  his  guardianship,  have  the  force  and  effect  of  a 
judgment,  and  after  final  settlement  is  made  and  the  guar- 
dian discharged,  it  can  only  be  impeached  or  set  aside  in 

sKiitliff  V.  Magee,  165  Mo.  401,  65  S.  W.  713;  Berkshire  v.  Ho- 
ver. S3  Mo.  App.  435. 

«  State,  to  Use  of  Thornton,  v.  Iloster,  61  Mo.  544;  Murphy  v. 
Murphy,  2  Mo.  App.  156;    Berkshire  v.  Hover,  83  Mo.  App.  435. 

7  Rev.  St.  1909.  §  458. 

8  State  ex  rel.  Hospes  v.  Branch,  151  Mo.  622,  52  S.  W.  390. 
8  Rev.  St.  1909.  S  459.     See  ante.  §§  376,  378. 

10  Turner  v.  Northc-ut,  9  Mo.  253. 

ket-.mo.p.c;.— 3:; 


514  FINAL    SETTLEMENTS  §  494 

an  equitable  proceeding  against  him  on  proof  that  it  was 
procured  by  fraud. ^^  But  in  case  the  settlement  is  by  the 
administrator  of  a  deceased  guardian  or  curator  with  the 
succeeding  guardian,  it  is  only  prima  facie  evidence  against 
the  sureties/-  The  settlement  of  a  guardian  stands  upon 
the  same  footing  as  that  of  an  administrator.^^ 

The  law  presumes  that  a  guardian  who  has  made  a  final 
settlement  of  the  estate  of  his  ward,  properly  accounted  for 
all  the  property  which  came  to  his  possession  as  guardian.^* 
The  orders  and  judgments  of  probate  courts  as  to  matters 
within  their  exclusive  jurisdiction  are  entitled  to  the  same 
presumptions  in  favor  of  their  correctness  as  are  accorded 
to  judgments  of  courts  of  general  jurisdiction.^^  And  such 
final  settlement  is  a  lien  on  the  estate  of  the  guardian.^*'  If 
the  guardian  expends  moneys  of  his  ward  for  his  mainte- 
nance and  education  without  an  order  of  the  court,  and  ob- 
tains credit  for  the  same  in  his  settlements,  the  requirements 
of  the  statute  will  be  satisfied,  and  the  guardian  will  be 
protected,  by  the  action  of  the  court  in  approving  his  ac- 
count, from  liability  to  the  ward  on  account  of  such  unau- 
thorized expenditure  of  his  estate. 

§  495.  Liability  of  Ward  to  Guardian. — Disbursements 
made  by  a  guardian  out  of  the  estate  of  the  ward  should  be 

11  Oldham  v.  Trimble,  15  Mo.  22.5;  State,  to  Use  of  Tourville,  v. 
Roland,  23  Mo.  95;  Mitchell  v.  Williams,  27  Mo.  399;  Lewis  v. 
Williams,  54  Mo.  200;  Clyce  v.  Aiidersou,  49  Mo.  .37;  Picot  v. 
Bates,  47  Mo.  390;  Smith  v.  Eureka  Bank,  24  Kan.  528;  West  v. 
West's  Adm'r,  75  Mo.  204;  Garten  v.  Botts,  73  Mo.  274;  Nelson  v. 
Barnett,  123  Mo.  564,  27  S.  W.  520 ;  Lenox  v.  Harrison,  88  Mo.  491  ; 
Yoeman  v.  Younger,  83  Mo.  424;  State  ex  rel.  Bates  v.  Shaw,  163 
Mo.  191,  63  S.  W\  .371 ;  Miller  v.  Major,  67  Mo.  247 ;  State  ex  rel. 
Fountain  v.  Gray,  106  ilo.  526,  17  S.  W.  500 ;  May  v.  INIay,  189  Mo. 
485,  88  S.  W.  75. 

1^  State,  to  Use  of  Brent,  v.  Grace's  Adm'r,  26  Mo.  87;  State,  to 
Use  of  Smith,  v.  Martin,  18  Mo.  App.  468;  State  ex  rel.  Hyslop  v. 
Bilby,  .50  Mo.  App.  162. 

13  Ante,  §  382;  Ackermann  v.  Haumueller,  148  Mo.  App.  427,  128 
S.  \\.  56. 

14  Smith  V.  Denny,  34  Mo.  219. 

i5Macey  v.  Stark,  116  Mo.  481,  21  S.  W.  1088;  Murphy  v.  De 
France,  105  Mo.  .53,  '  15  S.  W.  949,  16  S.  W.  861 ;  Rottmann  v. 
Schmucker,  94  ^lo.  139,  7  S.  W.  117;  Camden  v.  Plain,  91  Mo.  117, 
4  S.  W.  86;  State  ex  rel.  Ilyslop  v.  Bilby,  50  Mo.  App.  162;  In  re 
Tucker,  74  Mo.  Ai)p.  .331 ;  Price  v.  Springfield  Real-Estate  Ass'n, 
101  Mo.  107,  14  S.  AV.  57,  20  Am.  St.  Rep.  595. 

10  State,  to  Use  of  Lovell,  v.  Todd,  57  Mo.  217. 


§  496  FINAL   SETTLEMENTS  515 

ordered  by  the  court,  and  should  not  exceed  the  amount  of 
the  ward's  estate,  and  should  the  guardian  keeping  within 
the  bounds  of  the  estate  of  his  ward  advance  his  own  means 
for  his  benefit,  he  would  be  entitled  to  be  reimbursed  out 
of  the  estate  of  his  ward.  Ihit  if  on  making  a  settlement 
a  balance  should  appear  in  his  favor  of  money  voluntarily 
expended  for  his  ward  exceeding  the  amount  of  his  estate, 
such  settlement  would  not  have  the  efifect  of  a  judgment 
against  the  ward,  nor  would  it  be  any  evidence  of  indebted- 
ness against  him.^^  So  if  a  guardian  voluntarily  disburse 
on  account  of  his  ward,  a  sum  greater  than  the  ward's  es- 
tate, he  has  no  recourse  on  the  ward  for  the  overplus,  un- 
less there  be  a  special  promise  to  pay  it.^^  A  contract  by 
the  guardian  for  the  care  and  support  of  the  ward  binds  him 
personally,  and  cannot  be  enforced  against  the  ward/^ 

§  496.  Final  Discharge. — When  the  ward  comes  of  age 
and  is  entitled  to  receive  his  estate,  whether  it  consists  of 
personal  property,  or  notes  and  accounts,  or  cash,  etc.,  the 
guardian  may  pay  it  over  to  him  and  take  his  receipt  there- 
for, specifying  the  articles  delivered  or  sum  paid,  and  re- 
turn the  same  with  his  report  for  final  settlement,  or  he 
may  retain  the  money  and  effects  until  his  final  settlement 
is  adjusted,  then  pay  it  over  to  the  ward  and  have  him  ac- 
knowledge satisfaction  of  record.  The  receipt  of  the  ward 
if  unaffected  with  fraud  or  imposition  will  protect  the  guard- 
ian and  his  securities  from  liability  to  pay  again.  Yet,  as 
the  statute  has  provided  for  the  acknowledgment  of  satis- 
faction of  record  in  the  proper  court  by  the  ward,  it  would 
be  better,  perhaps,  to  obtain  such  satisfaction.  The  stat- 
ute upon  the  subject  is  as  follows: 

Successors  of  guardians  and  curators  having  received  all 
money  and  other  estate  found  to  be  due  to  their  wards, 
and  wards  having  received  all  money  and  other  estate  due 
from  their  guardians  or  curators,  on  the  expiration  of  the 
guardianship  or  curatorship,  shall  acknowledge  satisfaction 
of  record  in  the  proper  court,  or  if  such  ward,  on  due  no- 
tice, neglect  or  refuse  to  make  such  acknowledgment,  or 
cannot  be  found  in  the  county,  to  be  served  with  the  notice, 
the  court  shall  enter  a  discharge  of  such  guardians  or  cura- 
tors on  the  record,  and  give  them  a  certificate  therefor; 

17  Wyatt  V.  Woods,  31  Mo.  351. 

18  Frost  V.  Winston.  32  Mo.  489. 

19  Rollins  V.  Marsh,  12S  ^lass.  IIG. 


516  FINAL   SETTLEMENTS  §  496 

provided,  that  such  court  shall  not  enter  said  discharge, 
nor  give  such  certificate  until  the  guardian  or  curator  afore- 
said shall  first  exhibit  to  said  court  the  written  statement 
of  such  ward,  acknowledging  the  receipt  of  all  money  and 
other  property  due  from  the  said  guardian  or  curator,  which 
said  written  statement,  if  the  ward  be  a  married  female, 
shall  be  signed  by  herself  and  her  husband,  and  if  by  a  male 
ward,  by  himself,  and  in  every  case  acknowledged  by  said 
parties  to  be  their  act  and  deed,  before  some  officer  au- 
thorized by  law  to  take  acknowledgments  of  deeds.  And 
upon  such  acknowledgment  of  satisfaction,  the  guardian  or 
curator  shall  be  discharged  of  record. -° 
The  ward's  final  receipt  may  be  as  follows : 

Form  of  Ward's  Final  Receipt 

Received  this day  of ,  19 — ,  of  Jolin  Doe,  my  cjuard- 

ian,  one  thousand  dollars  in  cash,  and  one  promissory  note  on  John 
Jay  for  one  hundred  dollars,  being  in  full  of  the  balance  of  all  mon- 
ey and  property  due  me  from  said  guardian,  as  shown  by  the  final 

settlement  of  his  guardianship,  made  at  the term,  19 — ,  of  the 

court  of county.  Mo. 

Dated  this day  of ,  19—.  OLIVER  ROE. 

Another  Form 

Received  this  day  of ,  19 — ,  of  John  Doe,  curator  of 

the  estate  of  Phebe  Roe,  minor  heir  of  John  Roe,  deceased,  and  now 
wife  of  George  Ray,  five  hundred  dollars  in  cash,  being  the  balance 
in  full  of  all  money  and  other  property  due  said  Phebe,  from  said 
curator,  as  shown  by  the  final  account  and  settlement  of  said  cura- 
tor, made  at  the  term,  19 — ,  of  the  court  of  

county.  Mo. 

Dated  this  day  of  ,  19—.  PIIEP>E  RAY. 

GEORGE    RAY. 

A  settlement  made  ])y  the  public  administrator  as  guardian 
is  conclusive  on  his  bondsmen  in  a  suit  by  his  successor.-^ 

State  of  ^Missouri,      ) 

County  of  .  j 

Before  me,  Jesse  Johns,  a  justice  of  the  peace  within  and  for  said 

county,   on   this   ■  day   of  ,    19 — ,   personally  came    the 

above  named,  Oliver  Roe  (or  Phebe  Ray  and  George  Ray),  and  ac- 
knowledged the  execution  of  the  above  statement  and  I'eceipt  to  be 
his  voluntary  act  and  deed. 

Given  under  my  hand.  JESSE  JOHNS, 

Justice  of  the  Peace. 

20  Rev.  St.  1909,  §  400. 

21  State  ex  rel.  Gordon  v.  Kennedy,  IGP,  Mo.  510,  6.3  S.  W.  678. 


§  498  FINAL   SETTLKMENTS  517 

§  497.  Compensation  of  Guardian  or  Curator. — Guard- 
ians and  curators  are  entitled  to  such  coin])ensation  for  their 
services  as  the  court  shall  determine  to  be  just  and  reason- 
able.-- Under  proi)er  circumstances  he  is  entitled  to  the 
services  of  an  attorney  and  should  be  allowed  a  reasonable 
attorney  fee,  to  be  approved  by  the  court. -^  He  should  be 
paid  a  reasonable  conii)ensation  for  the  time  employed  in 
the  discharge  of  his  duties,  and  he  should  also  be  reimbursed 
his  expenses  and  outlays  made  and  incurred  in  behalf  of 
the  ward ;  and  when  a  considerable  amount  of  money  has 
been  loaned  and  taken  care  of  he  should  be  allowed  a  rea- 
sonable commission  for  the  responsibility  incurred  in  rela- 
tion thereto.  He  should  not  be  paid  exorbitantly,  but  rea- 
sonably, for  the  execution  of  the  trust. 

§  498.  Removal  and  Resignation. — Guardians  and  cura- 
tors may  resign  their  trust,  or  be  removed  from  office  for 
like  causes,  in  like  manner,  and  with  like  effect  as  in  the 
case  of  an  executor  or  administrator.-"*  An  executor  or  ad- 
ministrator is  required  to  publish  in  a  newspaper  for  four 
weeks  a  notice  of  his  intention  to  resign  his  office,  and  upon 
proof  of  such  notice,  and  for  good  cause  shown,  the  court 
will  permit  him  to  do  so.-^  It  would  seem  that  a  guardian 
or  curator  should  proceed  in  like  manner.  The  notice  may 
be  as  follows : 

Notice  of  Guardian's  Intention  to  Resign 

State  of  Missouri, 
County  of  


Notice  is  liereby  given  that  the  undersigned  guardian  of  the  i>er- 

son  and  estate  of  ,  minor,  will  apply  to  the  probate  court  of 

said  county  at  the  next  term  to  be  lield  at  the  court  house  on  the 
day  of ,  19 — ,  for  permission  to  resign  as  such  guard- 
ian. JOHN  DOE, 

Guardian. 

The  probate  court  has  inherent  power  to  remove  a  cu- 
rator, on  a  citation  issued  of  its  own  motion.-'^ 

And  in  case  of  the  death  of  a  guardian  or  curator,  his  ad- 
ministrator or  the  legal  representative,  must  make  settle- 
ment with  his  successor,  and  deliver  the  jiroperty  and  money 

22  Rev.  St.  1909,  §  4G2. 

23  State  ex  rel.  Tygard  v.  Elliott,  S2  Mo.  App.  458. 
2*  Rev.  St.  1909,  §  462 ;  ante,  §  105. 

2  0  Rev.  St.  1909,  §  51. 

26  In  re  Ford,  157  Mo.  App.  141,  1,37  S.  W.  32. 


518  FINAL   SETTLEMENTS  §  499 

belonging  to  the  ward  of  the  decedent  to  such  successor.^'' 
Such  settlement  is  only  prima  facie  evidence  against  the 
sureties  on  the  curator's  bond.-*  But  it  is  in  a  sense  a  final 
settlement,  and  may  be  appealed  from  by  the  guardian  or 
his  sureties.-'' 

§  499.  Appeals  are  allowed  from  any  final  order  orj'udg- 
ment  of  the  probate  court,  any  time  during  the  term,  or 
within  six  months  thereafter,  in  like  manner  and  with  the 
same  efifect,  as  appeals  are  allowed  in  cases  of  administra- 
tion of  estates  of  deceased  persons.^"  Although  it  has  been 
held  that  the  sureties  on  the  curator's  bond  cannot  appeal 
from  the  judgment  of  the  court  passing  on  the  curator's  ac- 
count.^^  In  such  case  the  sureties  are  not  parties  to  the 
judgment,  nor  mterested  in  the  estate,  although  final  set- 
tlements are  conclusive  on  sureties  ^-  in  a  collateral  proceed- 
ing. 

2  7  Rev.  St.  1909,  §  4G1. 

2s  State,  to  Use  of  Brent,  v.  Grace's  Adm'r,  26  Mo.  87. 

2  3  INIcKinuey  v.  Hensley,  74  Mo.  327. 

30  Rev.  St.  1909,  §  4G.3;  Cohen  v.  Atkius,  73  Mo.  1G3;  State  v.  Al- 
len, 92  Mo.  20,  4  S.  W.  414 ;  State  ex  rel.  Finger  v.  Reynolds,  121 
Mo.  App.  G99,  97  S.  W.  650;    Henry  v.  McKerlie,  78  Mo.  416, 

31  Wilhite  V.  Ferry,  66  Mo.  App.  453;  State,  to  Use  of  Smith,  v. 
Martin,  18  Mo.  App.  468. 

3  2  State  ex  rel.  Hyslop  v.  Bilby,  50  Mo.  App.  162. 


§  501  FRIENDLESS   CIIILDUEN  519 

CHAPTER  XLIV 

GUARDIANSHIP  OF  I<  UlENDLESS  CHILDREN 

§  500.  Incorporated  society  may  act,  when. 

501.  The  applicatiDii. 

50L'.  Frioii(llt.'Ss  eliiltl,  how  dispost-d.  of. 

503.  Appeal  will  lie. 

§  500.  Incorporated  Society  May  Act,  When.— Any  so- 
ciety incorporated  under  the  laws  of  Missouri,  Chapter  33, 
art.  10,  R.  S.  1909,  having  as  its  object,  or  one  of  its  objects, 
the  care  or  protection  of  abandoned,  ill-treated  and  friendless 
children,  may  act  as  guardian  of  the  persons  of  any  such  chil- 
dren when  duly  ai)pointed  as  such.  The  probate  court  of  a 
county  or  city,  being  satisfied  of  the  ability  and  purpose  of 
such  society  to  properly  keep  and  care  for  such  child  or  chil- 
dren, may  appoint  a  guardian  of  any  child  or  children  under 
fourteen  years  of  age  within  its  jurisdiction  if  it  appear  that 
such  child  or  children  have  been  abandoned  by  their  parents 
or  the  parents  are  unfit  for  the  duties  of  guardianship,  or  if 
no  suitable  person  can  be  found  who  is  able  and  willing  to 
take  the  guardianship.^ 

§  501.  The  Application  by  the  society  must  state  the 
name  and  place  of  residence  of  the  child  and  of  its  parents 
and  the  circumstances  of  the  abandonment,  ill-treatment  or 
neglected  condition,  so  far  as  known,  and  ten  days'  notice 
must  be  given  to  the  parents,  if  their  place  of  residence  is 
known,  or  if  it  is  not  known  to  the  person  actually  in  charge 
of  the  child,  before  the  application  is  heard  and  determined. 
The  question  of  unfitness  or  incompetency  of  the  parents  must 
be  determined  by  a  jury  if  one  be  demanded,  otherwise  it  may 
be  determined  by  the  court. 

Application  for  Appointment  of  Guardian 

To  the  rrobate  Court  of County,  Mo. 

The  undersigned  ( Society)  duly  incorporated  under  chapter 

12,  art.  11,  Revised  Statutes  of  Missouri,  1890,  whose  oltject  is  the 
care  and  protection  of  abandoned,  ill-treate<l  and  friendless  chil- 
dren, would  respectfully  represent  and  show  to  the  court  that  Maud 
Young,  a  minor,  under  the  ajie  of  fourteen  years,  the  child  of  Jos- 
eph Young  and  Martha  Young,  whose  place  of  residence  is  in  the 

1  Rev.  St.  1909,  §§  4G0,  4G7. 


520  TRIENDLESS   CHILDREN  §  501 

city  of ,  in  the  said  county  of ,  has  been  abandoned  by 

her  said  parents  and  left  without  care  or  protection,  and  her  said 
parents  are  iucompeteut  and  uutit  for  the  duties  of  guardianship  of 
said  child,  and  there  is  no  suitable  person  who  is  able  and  willing 
to  take  the  guardianship  and  care  of  said  child.  Wherefore,  said 
Society  asks  the  court  to  appoint  it  guardian  of  said  Maud  Young 

and  it  will  as  in  duty  bound,  etc.  , 

Attest:  By ,  President. 

,  Secretary. 

Notice  of  Application 

To  Joseph  Young  and  Martha  Young: 

You  are  notitied  that  application  has  been  made  to  the  probate 

court  of county,  Missouri,  by  Society  to  be  appointed 

guai-diau  of  Maud  Young,  your  minor  child,  who  is  under  fourteen 
years  of  age,  for  the  reason  that  said  child  has  been  abandoned 
and  that  you  are  unfit  and  incompetent  for  the  duties  of  guardian- 
ship of  said  child,  and  that  said  application  will  be  heard  before 
said  court  at  the  probate  court  room,  in  the  court  house  in  the  city 

of  ,   the  county   seat   of   said   county,   on   the  day   of 

,  19 — ,  at  which  time  and  place  you  may  be  heard,  etc. 


By  ,  President. 

The  statute  does  not  say  by  whom  this  notice  shall  be  given, 
or  how  it  shall  be  served.  It  might  be  issued  by  the  judge  or 
clerk  of  the  court  and  served  by  the  sheriff,  and  the  officers' 
return  would  be  sufficient  proof  of  service. 

If  it  be  issued  by  the  applicant  and  served  by  any  person 
other  than  an  officer,  the  proof  of  service  may  be  shown  by 
his  affidavit  of  the  fact. 

If  the  application  be  sustained  and  the  society  appointed 
guardian,  it  will  have  all  the  powers  and  duties  of  guardian  of 
the  child  or  children  until  they  reach  the  age  of  fourteen 
years,  when  they  may  choose  guardians  for  themselves,  subject 
to  the  approval  of  the  court.  The  probate  court  may  at  any 
time  revoke  the  power  given  to  said  society,  upon  satisfactory 
proof  that  it  would  be  for  the  best  interests  of  the  child. - 

The  parents  or  surviving  parent  of  any  child  placed  in  the 
care  of  said  society  may  by  deed  duly  signed,  acknowledged 
and  recorded  in  the  county  or  city,  as  in  the  case  of  convey- 
ances of  real  estate,  release  to  it  their  parental  rights  respect- 
ing such  child,  and  such  release  will  deprive  such  parent  of  the 
right  to  the  custody  and  control  of  said  child  and  to  its  earn- 
ings during  its  minority.* 

2  Rev.  St.  1900,  §  4G9.  3  Rev.  St.  1909,  §  470. 


§  0U2  FRIENDLESS    CHILDREN  521 

§  502.  Friendless  Child,  When  and  How  Taken.— Such 
society  may  make  a  statement  to  the  court  ur  jud.^e  in  vacation, 
verified  by  the  oath  of  some  competent  person,  that  there  is 
a  child  within  the  jurisdiction  of  the  court  suffering  from  neg- 
lect or  ill-treatment,  and  if  the  court  or  judge  be  satisfied  upon 
the  statement  presented  or  affidavits  filed  therewith,  that  the 
child  is  suffering  from  neglect  or  ill-treatment,  such  court  or 
judge  may,  in  its  discretion,  by  writ  in  proper  form,  direct  the 
sheriff  to  take  the  child  and  deliver  it  into  the  custody  of  the 
society,  and  the  sheriff  must  obey  the  writ.  The  child  may  re- 
main in  the  custody  of  the  society,  subject  to  the  order  of  the 
court  or  judge  for  not  more  than  thirty  days,  and  if  applica- 
tion be  made  within  that  time  by  such  society  to  be  appointed 
guardian,  until  the  application  be  determined,  at  the  end  of 
which  time  the  court  or  judge  must  order  it  to  be  placed  in  the 
custody  of  its  guardian,  or  if  there  be  no  guardian,  to  the  per- 
son from  whose  care  it  was  taken.* 

Statement  of  Neglect  or  Ill-Treatment 

The  Society,  duly  incorporated  under  chapter  12,  art.  11, 

R,  S.  1899.  whose  object  is  in  part  the  care  and  protection  of  aban- 
doned, ill-ti'eated   and  friendless  children,    would   respectfully  state 

to  the  probate  court  of  county  (or  the  judge  thereofi,  that 

Mary  Swope,  a  minor  under  the  ase  of  fourteen  years  and  a  resi- 
dent of  said  county,  the  child  of  .John  fS\voi)e,  also  a  resident  of 
said  county,  is  suft'ering  from  neglect  (or  ill-treatment)  at  the  hands 
of  said  .lohn  Swope  its  father,  in  this,  that  said  child  is  not  suffi- 
ciently clothed  and  fed  to  keep  it  comfortable,  and  is  suffered  to 
run  at  large  upon  the  streets  in  bad  company  and  bad  associations 
to  the  great  injury  of  the  morals  of  the  child  and  the  detriment  of 
society.     (State  in  what  way  the  child  is  neglected,  etc.t 

S.  S.,  being  duly  sworn  upon  his  oath,  states  that  the  facts  stated 
and  set  forth  in  the  above  and  foregoing  statement  are  true. 


Subscribed  and  sworn  to  before  me  this  dav   of 


19 — .  ,  Probate  Judge. 

Writ  for  Child 

The  State  of  ilissouri.  To  .  Sheriff  of County. 

Whereas,  the  Society,  a  corporation,  has  made  and  filed  a 

statement  to  the  probate  court  of  said  county  (or  to  the  judge  there- 
of in  vacation),  that  Mary  Swope,  a  minor  under  the  age  of  four- 
teen years,  a  child  of  .John  Swope.  is  suffering  from  neglect  and  ill- 
treatment;  which  statement  is  duly  verified  by  the  oath  or  attidavit 
of  ,  a  resident  of  said  county,  and  the  court  being  satisfied 

4  Rev.  St.  1900,  §  471. 


522  FRIENDLESS    CHILDREN  §  502 

of  the  truth  of  said  statement,  these  are  to  command  j'ou,  therefore, 
the  said  Mary  Swope  forthwith  to  apprehend  and  deliver  her  into 
the  custody  of  said  society,  and  that  you  malie  return  of  this  writ 
with  your  proceedings  thereon  to  this  court,  or  to  the  judge  thereof. 

Given  under  my  hand  and  the  seal  of  said  court,  this  day 

of  ,  19 — .  ,  Judge  of  Probate. 

When  any  order  is  made  by  the  judge  in  vacation  he  may 
enforce  obedience  to  it  in  the  same  manner  as  the  court  may 
do  in  Hke  cases. ^ 

§  503.  An  Appeal  will  lie  from  any  final  order  or  final 
decision  of  the  court,  but  it  will  not  act  as  a  supersedeas  or 
stay  the  execution  or  the  order  appealed  from,  except  in  so  far 
as  the  probate  court  may  order  concerning  the  custody  of  the 
child  pending  the  appeal.'' 

5  Rev.  St.  1909,  §  472.  «  Rev.  St  1909,  §  473. 


§  504  PERSONS   OF   UNSOUND   MIND  523 

CHAPTER  XLV 

OF  THE  GUARDIANSHIP  OF  PERSONS  OF  UNSOUND  MIND 

§  504.  I'robate  court  to  iuquire  by  jury  as  to  insanity. 

505.  Notice  to  persons  informed  against — Record  entries. 

506.  Appointment  of  guardian,  costs  liow  paid — New  trial. 

507.  Bond — Its  form. 
50.S.  Duties  of  guardian. 

509.  Inventory  of  estate. 

510.  Restraint  of  ward. 

511.  Notice  of  appointment. 

512.  Allowance  of  demands. 

513.  Suits  by  and  against  insane  ward. 

514.  Sale  of  real  estate. 

515.  Order  of  sale,  terms  of  sale,  etc. 

516.  Sale  for  re-investment — Of  non-residents. 

517.  Mortgage,  etc.,  to  be  approved — I^tfect  of  conveyance. 

518.  Settlement  by  guarditm. 

519.  Same — On  removal  or  death  of  guardian. 

520.  Death  of  insane  ward. 

521.  Support  granted  to  insane  ward  by  county  court 

522.  Proceedings  when  ward  has  recovered  his  mind. 

523.  Insane  may  be  confined. 

524.  Expenses  when  ward  is  sent  to  iisylum. 

525.  County  to  be  repaid  how  and  when. 
52G.  Curator  for  non-resident  insane. 
527.  Resignation  of  guardian  or  curator. 

§  504.     Probate  Court  to  Inquire  by  Jury  as  to  Sanity. — 

If  information  in  writing  be  given  to  the  probate  court  that  any 
person  in  the  county  is  an  idiot,  lunatic  or  person  of  unsound 
mind,  or  is  addicted  to  habitual  drunkenness,  and  is  the  owner 
of  property,  and  incapable  of  managing  his  affairs,  and  praying 
that  an  inquiry  be  had,  the  court,  if  satisfied  that  there  is  good 
cause  for  the  exercise  of  its  jurisdiction,  must  cause  the  facts  to 
/\  be  inquired  into  by  a  jury.  If  such  information  be  given  in  va- 
v>:  cation,  the  judge  must  call  a  special  term  for  the  purpose  of 
A  holding  an  inquiry  whether  the  person  mentioned  in  the  infor- 
\  mation  be  of  an  unsound  mind  or  not.^  So,  if  any  judge  of  the 
J  county  court,  justice  of  the  peace,  sheriff,  coroner,  or  constable 
^  discover  any  resident  of  the  county  to  be  of  unsound  mind,  it  is 
<\  his  duty  to  make  application  to  the  probate  court  for  the  ex- 
ercise of  its  jurisdiction,  and  like  proceedings  must  be  had 
in  the  case  of  information  by  unofficial  persons. ^     The  words, 

1  Rev.  St.  1909,  §§  474,  475.  «  Rev.  St.  1009.  §  477. 


:ii 


V 

^ 


524  PERSONS    OF   UNSOUND   MIND  §  504 

"person  of  unsound  mind,"  or  "insane  person"  are  construed 
to  mean  either  an  idiot  or  a  lunatic,  or  a  i)erson  of  unsound 
mind  and  incapable  of  managing  his  own  affairs.^  This  pro- 
ceeding applies  to  one  who  is  so  addicted  to  habitual  drunken- 
ness as  to  be  incapable  of  managing  his  own  affairs.* 

Form  of  Iiifoniiation 

In  the  matter  of  the^ 

alleged   insanity  of  Lin  the  Probate  Court  of County. 

Mark  Reeves.  j 

John  Reeves  gives  the  said  court  now  here  to  know  and  be  in- 
formed   that   Mark    Reeves,    who    is   a    resident   of   said    county    of 

,  is  a  person  of  unsound  mind  and  incapable  of  managing  his 

aft'airs ;  that  he  is  the  owner  of  a  large  amount  of  projierty,  to  wit: 
(here  set  out),  which  is  liable  to  waste  and  deterioration  and  loss 
by  exposure  and  want  of  care,  and  that  he  is  likely  to  squander  and 
waste  his  said  property,  unless  the  care  and  management  of  said 
property  be  placed  under  the  care  of  a  suitable  person  as  guardian 
of  said  Mark  Reeves,  and  your  informant  prays  that  an  inquiry 
thereinto  be  had  by  a  jury  whether  the  said  ^lark  Reeves  be  of  un- 
sound mind  or  not,  and  that and be  summoned  as  wit- 
nesses in  that  behalf.  JOHN  REEVES. 

Another  Form  of  Information 

State  of  Missouri,      )  t    ..i,    t.     ,    ..    .-,       ^  ■         ^  i-  -^       i. 

^        ,        „  'In  the  Probate  Court  m  and  tor County. 

County  of  .  j 

In  the  matter  as  to  unsoundness  of  ,  of county.  State 

of  Missouri. 

To  the  Probate  Court  and  the  Judge  of  the  Probate  Court  in  and 

for  the  County  of  ,  and  State  Aforesaid: 

Now  comes  ,  the  undersigned  informant  and  petitioner,  and 

would  respectfully  represent  that  he  is  over  the  age  of  twenty-one 

years,  and  is  now,  and  has  been  for  the  last  past,  a  bona 

fide  resident  of  the  in  the  county  of  ,  and  state  of 

Missouri. 

That  one  .  a  resident  of  said  county,  a  married  per- 
son of  or  about  the  age  of  years,  by  occupation  a  , 

having  a  family  of  children,  and  having  real  

l)ersimal  property  in  his  own  name  and  right,  is  a  person  of  unsound 
mind  and  incapable  of  managing  his  affairs. 

Therefore,  your  informant  and  petitioner  would  respectfully  pray 
this  honorable  court  that  the  matter  be  inquired   into  by  a  jury ; 
and  that  all  due  proceedings  be  had  herein  as  by  the  laws  of  the 
state  in  such  cases  made  and  provided.    And  shall  ever  pi*ay. 
State  of  Missouri,      ) 

S' 

County  of  .  j ' " 

,  of  lawful  age,  being  duly  sworn,  upon  his  oath  deposes 

and  says  that  he  has  heard  the  above  and  foregoing  Information 
and  petition;    knows  and   fully   understands  the  contents  thereof; 

3  Rev.  St.  1909,  §  531. 

4  Rev.  St.  1909,  §  5.34 ;   Darby  v.  Cabanne,  1  Mo.  App.  126. 


§  505  PERSONS    OF    UNSOUND    MIND 


525 


and  avers  that  the  matters  and  thing's  theieiu  set  forth  are  true  in 
sulistance  aud  in  fact,  as  he  verily  believes. 

Subscrilted  in   uiy   presence   and   sworn   to   before   ine   this   

[Seal.J     day  of  ,  A.  D.  I'J— .         ,  Probate  Judge. 

§  505.  Party  Under  Investigation  to  be  Notified. — The 
allcj^cd  insane  person  must  be  notified  of  the  proceeding,  un- 
less the  court  order  him  to  be  brought  before  the  court,  or 
spread  upon  its  record  of  the  proceedings,  the  reason  why 
such  notice  or  attendance  was  not  required."'  The  notice  is  a 
part  of  the  record,  unless  dispensed  with,  and  in  case  of  con- 
flict between  it  and  the  record,  the  notice  controls."  The  no- 
tice corresponds  to  a  summons  in  an  ordinary  action,  and  the 
party  may  enter  his  appearance  and  the  proceeding  will  not 
be  liable  to  collateral  attack,  and  the  guardian  appointed  would 
be  estopped  to  deny  its  validity.^ 


Order  to  Bring  in  Party 


State  of  Missouri, 


County  of 


} 


The  State  of  Missouri,  to  the  Sheriff  of County,  fn-eeting: 

Whereas,    information    has    been    tiled    in    the    probate    court    of 

county,  aforesaid,  that  one  of  and  in  the  county  of 

,  is  insane,  and  a  person  of  unsound  mind  and  incapable  of 

managing  his  affairs. 

These,   therefore,   oomniand  yon,   that  you   bring   the    said   

Into  the  probate  court,  aforesaid,  at  the  probate  court  room  in  the 

city  of ,  on  the day  of  A.  D.  19—,  at  of 

the  clock,  in  the  noon  of  that  day,  if  be  found  in  a 

condition  to  bring  into   the  court,  then  and  there  to  hear  and  an- 
swer what  may  be  alleged,  and  to  abide  the  judgment  of  the  court 
in  the  premises,  and  that  you  certify  how  you  executed  this  order. 
"Witness  my  hand,  with  the  seal  of  the  probate  court  afiixed.  this 
ciay  of A.  D.  19—.  ,  Probate  Judge. 

The  following  entry  may  be  useful: 

Form  of  Entry  Where  the  Application  is  Made  in  Term 

In  the  matter  of  the  alleged  "^ 

insanity   of   Mark    Reeves,    j,.  Inquisition  of  Insanity. 

John  Reeves,  informant.        J 

Now  at  this  time  comes  John  Reeves  and  by  information  in  writ- 
ing, informs  the  court  that  Mark  Reeves,  a  resident  of coun- 

G  Rev.  St.  1909.  §  476;  In  re  Marquis,  85  Mo.  G1.5 ;  Hunt  v.  Sear- 
cy, 167  Mo.  158,  67  S.  W.  206;    Crow  v.  Meyersieck,  88  Mo.  411. 

6  Crow  V.  Meyersieck.  88  Mo.  411 ;  Adams  v.  Cowles.  95  ^lo.  501, 
8  S.  W.  711,  6  Am.  St.  Rep.  74;  Laney  v.  Garbee.  105  Mo.  355.  16  S. 
W.  831.  24  Am.  St.  Rep.  391. 

7  Crow  V.  Meyersieck.  88  Mo.  411;  Coleman  v.  Farrar.  112  Mo. 
54,  20  S.  W.  441;  Dutcher  v.  Hill.  29  Mo.  271.  77  Am.  Pec.  572; 
State  ex  rel.  Yarnell  v.  Cole  County  Court.  80  Mo.  80. 


520  PERSONS   OF   UNSOUND   MIND  §  505 

ty,  is  a  porson  of  unsound  mind  and  incapable  of  managing  his  af- 
fairs, it  is  therefore  ordered  that  said  Marli  Reeves  be  forthwith 
brouglit  before  the  court,  that  the  facts  alleged  may  be  inquired 
into  by  a  jury.  (Or  say,  and  it  appearing  to  the  court  that  said 
Mark  Keeves  is  of  violent  and  dangerous  disposition,  and  cannot  be 
safely  brought  before  the  court  (state  reason)  it  is  ordered  that  no- 
tice to  him  and  his  presence  be  dispensed  with  at  the  investigation 
of  the  facts  alleged  in  said  information.)  And  the  said  Mark  Keeves 
being  brouglit  before  the  court  by  as  by  the  court  command- 
ed, now  comes  a  jury,  to  wit:  (Proceed  as  in  the  next  form  after 
the  *.) 

If  the  information  be  presented  in  the  vacation  of  the  court 
the  following  entry  of  the  proceeding  may  be  used: 

Entry  of  Proceeding  Had  at  Special  Term 

State  of  Missouri,     ]^  ,.        <.,.,     t-,!*/-.       i.*-,  4. 

,,        ^       ,.  Hn  vacation  of  the  Probate  Court  of  said  county. 

County  ot  .  j 

In  the  matter  of  alleged  insanity  of . 

Now  on  this day  of ,  A.  D.  19 — ,  comes  J.  W.  Crank, 

a  justice  of  the  peace  of  the  county  of  ,  and  gives  informa- 
tion in  writing  to  the  judge  of  the  probate  court  of  said  county,  in 

vacation,  that ,  a  resident  of  said  county,  is  of  unsound  mind 

and  incapable  of  managing  his  affairs,  and  praying  that  an  inquiry 
thereinto  be  had,  and  said  judge  being  satisfied  that  there  is  good 
cause  for  the  exercise  of  the  jurisdiction  of  said  probate  court  in 
said  matter,  now  calls  a  special  term  of  said  court  to  be  held  on 

the day  of  ,  A.  D.  19 — ,  for  the  purpose  of  holding  an 

inquiry  whether  the  said  be  of  unsound  mind  or  not,  and 

orders  that  said be  notified  of  snch  proceedings  at  least  five 

days  before  said  special  term  of  said  court. 

Court  met  pursuant  to  the  order  of  the  judge  in  vacation,  for  the 

purpose  of  holding  an  inquiry  whether  be  of  unsound  mind 

or  not,  and  notice  to  being  returned  by  D.  G.,  constable  of 

township,  county,  served  by  reading  to  said  

and  also  by  delivering  to  him  a  copy  of  the  same,  the  said  

now  appears  in  open  court,  and  comes  a  jury  duly  summoned  to 
wit:     *     *     *     twelve  good  and  lawful  men,  who  are  duly  sworn,  to 

well  and  truly  make  inquiry  and  determine  whether  the  said  

is  a  person  of  unsound  mind  or  not,  and  the  jury  having  seen  and 

examined  the  said  and  heard  the  evidence  offered  touching 

his  condition  retired  to  consider  their  verdict,  and  after  due  delib- 
eration returned  into  court  the  following  verdict: 

"We,  the  jury,  find  to  be  of  unsound  mind  and  incapable 

of  managing  his  own  affairs."  (Signed  by  all  the  jurors.) 

It  is  therefore  adjudged  by  the  court  that  said  is  a  person 

of  unsound  mind  and  inca])al)le  of  managing  his  affairs,  and  the 
court  hereliy  appoints guardian  of  said  ,  and  it  is  or- 
dered that  said  guardian  before  entering  on  the  duties  assigned  him 

shall  enter  into  a  bond  to  the  state  of  Missouri  in  the  sum  of ' 

hundred  dollars,  conditioned  as  required  by  law  with  such  security 
as  the  court  shall  approve. 


§  507  PERSONS    OF   UNSOUND    MIND  527 

§  506.  Appointment  of  Guardian — Costs  How  Paid — 
New  Trial. — If  it  be  fcnind  ])y  the  jury  that  the  subject  of  the 
in(|uiry  is  of  unsound  mind  (or  an  habitual  drunkard)  and  in- 
capable of  managing  his  affairs,  the  court  must  appoint  a  guard- 
ian of  the  person  and  estate  of  such  insane  person,  and  the 
costs  of  the  proceeding  must  be  paid  out  of  his  estate,  or,  if 
that  be  insufficient,  by  the  county.  But  if  the  subject  of  the 
inquiry  be  discharged,  the  costs  must  be  paid  by  the  person 
at  whose  instance  the  j^roceeding  is  had,  unless  he  be  an  officer 
acting  officially,  in  which  case  the  costs  must  be  paid  by  the 
county.  If  the  ])erson  so  found  to  be  of  unsound  mind  be 
an  officer  of  the  state  or  county  or  of  a  municipality,  his  office 
shall  be  deemed  vacant,  and  the  judge  of  the  probate  court  must 
certify  the  fact  of  such  finding  to  the  authority  having  power  to 
fill  the  vacancy,  which  must  be  done  during  the  insanity  of  such 
ofificer,  and  if  the  insane  person  l)e  probate  judge,  the  inquiry 
and  proceeding  must  be  had  in  the  county  court. ^  The  court 
may  at  any  time  during  the  term  in  which  an  inquisition  is 
had,  set  the  same  aside  for  good  cause,  and  cause  a  new  jury 
to  be  impaneled  to  inf[uire  into  the  facts;  but  when  two  juries 
concur  in  any  case  the  verdict  shall  not  be  set  aside."  The 
court  may  set  aside  the  judgment  during  the  term  or  at  a  sub- 
sequent term  during  the  continuance  of  the  guardianship  for 
irregularities  in  the  proceedings,  as  where  no  notice  was  given 
and  no  reason  was  shown  of  record  why  it  was  not  given. ^'^ 
It  may  be  set  aside  for  fraud  and  misrepresentation  in  obtain- 
ing it,  without  notice.  ^^ 

§  507.  Bond. — Every  guardian  of  a  person  of  unsound 
mind,  before  entering  upon  the  duties  assigned  to  him,  must 
enter  into  bond  to  the  State  of  IMissouri,  in  such  sum  and  with 
such  security  as  the  court  shall  approve,  conditioned  that  he 
will  take  due  and  proper  care  of  such  insane  person,  and  man- 
age and  administer  his  estate  and  effects  to  the  best  advantage, 
according  to  law,  and  will  faithfully  do  and  perform  all  such 
other  acts,  matters  and  things  touching  his  guardianship  as 
may  be  prescribed  by  law  or  enjoined  on  him  by  the  order,  sen- 


8  Rev.   St.  1909,  §§  -478,  4S1 ;    Morris  v.  Morris,  12s  Mo.  App.  (JT3, 
107  S.  W.  405. 

9  Rev.  St.  1909,  §  482;    In  re  Marquis,  85  Mo.  CIS;    In  re  ('rouse, 
140  Mo.  App.  545,  120  S.  W.  606. 

10  In  re  Marquis,  85  Mo.   015;    Dutcher   v.    Hill,  29   Mo.   271,-77 
Am.  Dec.  572. 

11  In  re  Marquis,  85  Mo.  615. 


528  PERSONS  or  unsound  mind  §  507 

tence  or  judgment  of  any  court  of  competent  jurisdiction. ^- 
The  court  may  at  any  time  require  a  new  bond  or  additional 
security,  as  the  circumstances  of  the  case  may  require ;  and 
if  any  order  for  that  purpose  be  not  complied  with  within  a 
reasonable  time  to  be  therein  mentioned,  the  appointment  of 
the  guardian  may  be  revoked,  and  another  appointed  who  will 
give  the  bond  and  security  required.^ ^  The  bond  given  by  the 
guardian  must  be  deposited  with  the  clerk  of  the  court  making 
the  appointment,  and  a  copy  thereof,  duly  certified  by  the  clerk, 
will  be  evidence  in  all  respects  as  the  original.^* 

Form  of  Bond 

We, ,  as  principal,  and  and ,  as  securities,  are 

tield  and  firmly  bound  to  the  state  of  ,   in  the  just  and  full 

sum  of  dollars,  for  the  payment  of  which  we  bind  ourselves, 

our  heirs,  executors,  and  administrators.  Witness  our  hands  and 
seals  hereunto,  this  day  of  ,  19 — . 

The  condition  of  the  above  bond  is  such  that  whereas  the  above 
bounden  has  been  appointed  guardian  of  the  person  and  es- 
tate of ,  found  to  be  of  unsound  mind  and  incapable  of  man- 
aging his  affairs:   Now  if  the  said  shall  take  due  and  proper 

care  of  said  ,  and  manage  and  administer  his  estate  and  ef- 
fects to  the  best  advantage,  according  to  law,  and  shall  faithfully 
do  and  perform  all  such  other  acts,  matters  and  things  touching  his 
guardianship  as  may  be  prescribed  by  law  or  enjoined  on  him  by 
the  order,  sentence  or  judgment  of  any  court  of  competent  juris- 
diction, then  this  bond  to  be  void;  otherwise  to  remain  in  full  force 
and  effect  . 


.     [Seal.] 

Taken  and  approved  this day  of ,  19 — ,  and  T  certify 

that  this  bond  was  signed  by  the  parties  thereto,  in  my  presence. 

P.  MERGER,  Probate  Judge. 

§  508.  Duties  of  Guardian. — It  is  the  duty  of  the  guar- 
dian, (1)  within  thirty  days  after  his  appointment,  to  cause  a 
notice  thereof  to  be  published  at  such  time  and  in  such  manner 
as  the  court  shall  order  or  the  law  direct;  ^^  (2)  he  must  take 
charge  of  the  person  committed  to  his  charge,  and  provide 
for  his  support  and  maintenance;^®  (3)  he  must  collect  and 
take  into  his  possession  the  goods,  chattels,  moneys  and  effects, 
books  and  other  evidences  of  debt,  and  all  writings  touching 

12  Rev.  St.  1909,  §  4S:;;    Ormiston  v.  Trumbo,  77  Mo.  App.  310. 

13  Rev.   St.  1909,  §  484. 

14  Rev.  St.  1909,  §  485. 

15  Rev.  St.  1909,  §  480. 

18  Rev.  St.  1909,  §  487;    Easley  v.  Bone.  39  Mo.  App.  388. 


§  510  PERSONS  OF   UNSOUND   MIND  529 

the  estate,  real  and  personal,  of  the  person  under  his  guardian- 
ship;  '"  (4)  within  sixty  days  after  his  appointment  he  must 
make  out  and  tile  a  true  inventory  of  the  real  and  personal 
estate  of  his  ward,  stating  the  income  and  the  profits  thereof, 
and  the  debts,  credits  and  effects,  so  far  as  the  same  shall  have 
come  to  his  knowledge;  ^^  (5)  and  if  any  property  be  discov- 
ered after  filing  the  inventory,  he  must  from  time  to  time,  as 
the  same  may  be  discovered,  file  additional  inventories  con- 
taining a  just  and  true  account  of  the  same;^®  (6)  he  must 
prosecute  and  defend  all  actions  instituted  in  behalf  of  or 
against  his  ward ;  collect  all  debts  due  or  becoming  due  to  his 
ward,  and  give  acquittances  and  discharges  therefor,  and  ad- 
just, settle  and  pay  all  demands  due  or  becoming  due  from  his 
ward,  so  far  as  his  estate  and  effects  will  extend;-*'  (7)  and 
he  is  authorized  and  required  to  loan  the  money  belonging 
to  the  estate  of  such  ward  in  the  same  manner  and  under  like 
circumstances  as  other  guardians  and  curators  loan  the  money 
of  their  wards.'^^  The  statute  defines  the  guardian's  duties ; 
none  should  be  implied. ^- 

§  509.  All  Such  Inventories  must  be  made  in  the  presence 
of  and  attested  by  two  credible  witnesses  of  the  neighborhood, 
and  must  be  verified  by  the  oath  or  affirmation  of  the  guar- 
dian.-^ The  forms  of  inventories  given  for  use  by  executors 
and  administrators  and  guardians  of  minors  may  be  readily 
adapted  to  use  here. 

§  510.  Restraint  of  Ward. — The  court  may  make  an  order 
for  the  restraint,  sup])ort  and  safe  keeping  of  such  person,  for 
the  management  of  his  estate,  and  for  the  support  and  main- 
tenance of  his  family,  and  education  of  his  children,  out  of 
the  proceeds  of  such  estate;  to  set  apart  and  reserve  for  the 
payment  of  debts,  and  let,  sell  or  mortgage  any  part  of  such 
estate,  real  or  personal,  when  necessary  for  any  of  the  pur- 
poses here  specified.-* 

17  Rev.  St.  1909,  §  488 ;   Tolson's  Adm'r  v.  Garner,  15  Mo.  494. 

18  Rev.  St.  1909,  §  4S9. 
10  Rev.  St  1909,  §  400. 

2  0  Rev.  St.  1909,  §  497;  Wisdom  v.  Shanklin,  74  Mo.  App.  428; 
Collins  V.  Trotter,  81  Mo.  275;  Reed  v.  Wilson,  13  Mo.  28:  Hayes 
v.  Miller,  81  Mo.  424;  Koeuig  v.  Union  Depot  R.  Co.,  194  Mo.  504, 
92  S.  W.  497. 

21  Rev.  St.  1909.  §  533. 

2  2  Michael  v.  Locke.  SO  Mo.  548;  ante,  §  456. 

23  Rev.  St.  1900.  §  491. 

2  4  Rev.  St.  1009.  §  501. 
KEL.Mo.r.Ci.— 34 


530  PERSONS  or  unsound  mind  §  511 

§  511.  Notice  of  Appointment,  How  Given. — ^Within 
ten  days  after  his  appointment  the  guardian  must  give  notice 
thereof  by  publication  in  some  newspaper  printed  and  pub- 
Hshed  in  the  county,  but  if  there  be  none,  then  in  a  paper  pub- 
lished in  another  county  nearest  to  the  county  in  which  the 
appointment  was  made,  for  three  weeks,  that  letters  of  guar- 
dianship had  been  granted  to  him  or  (that  he  had  been  ap- 
pointed guardian),  and  requiring  all  persons  having  claim? 
against  the  estate  of  such  insane  person  to  exhibit  them  for  al- 
lowance before  the  probate  court  within  one  year  from  the 
date  of  said  publication,  or  they  will  be  forever  barred. ^°  The 
law  does  not  provide  for  the  issuing  of  letters  of  guardianship. 
The  order  of  record  showing  the  appointment  is  sufficient,  and 
a  certified  copy  thereof  would  be  equivalent  to  letters. 

Guardian's  Notice  of  Letters 

Notice  is  hereby  given  that  the  undersigned  was,  on  the  

day  of ,  19 — ,  appointed  guardian  of  the  person  and  estate  of 

"W.  F.  Cobb,  an  insane  person  and  that  letters  of  guardianship  were 
Issued  to  him  by  the  probate  court  of county,  Missouri,  bear- 
ing date  day  of  ,    19 — .     All  persons   having   claims 

against  the  estate  of  said  W.  F.  Cobb  are  required  to  exhibit  them 
for   allowance  before  the  probate  court  of  said  county  within  one 

year  from  the  date  of  the  publication  of  this  notice,   viz.,  , 

19 — ,  or  they  shall  be  forever  barred.  .SAM  JONES,  Guardian. 

§  512.  Presentation  and  Allowance  of  Demands. — All  de- 
mands against  the  estate  of  an  insane  person  must  be  present- 
ed to  the  probate  court,  and  notice  of  intention  to  present  same 
must  be  served  on  the  guardian  with  a  copy  of  the  instrument 
of  writing  or  account  upon  which  it  is  founded,  and  such  de- 
mand will  be  considered  legally  exhibited  from  that  time  or 
a  waiver  of  such  notice  in  writing  or  in  open  court  by  the  guard- 
ian, and  all  demands  not  exhibited  or  presented  for  allowance 
within  one  year  from  publication  of  notice  of  the  appoint- 
ment of  the  guardian  will  be  forever  barred.  If  there  shall  not 
be  sufficient  assets  to  pay  all  the  demands  allowed  in  full,  the 
court  must  make  an  order  prorating  the  assets  equally  among 
the  holders  of  allowed  demands.^® 

2  6  Laws  1911,  p.  87,  §  1. 

2«Rev.  St.  1909,  §§  498,  499;  Laws  1911.  p.  87.  §  1 ;  City  of  St. 
Louis  V.  Hollrah,  175  Mo.  79,  74  S.  W.  996;  Chariton  County  v. 
Hartman,  190  Mo.  71,  88  S.  W.  017. 


§  514  PERSONS    OF   UNSOUND    MIND  531 

§  513.  Suits  by  and  Against  Insane  Ward.— A  contract 
made  by  a  person  found  to  be  of  unsound  mind  without  the 
consent  of  his  guardian  is  not  valid,  and  the  guardian  may  sue 
for  and  recover  any  money  or  property  which  may  have  been 
sold  or  disposed  of  by  the  ward  without  his  consent.-^  A  con- 
veyance by  him  may  he  avoided  by  his  guardian.-*  The  guard- 
ian must  prosecute  and  defend  all  actions  instituted  in  behalf 
of  or  against  his  ward.-"  A  suit  in  behalf  of  the  ward  must 
be  brought  in  his  own  name  by  his  guardian,  and  not  in  the 
name  of  his  guardian.^"  In  all  actions  commenced  against 
such  insane  ward,  the  process  must  be  served  on  his  guardian ; 
and,  on  judgment  against  such  insane  person  or  his  guardian, 
as  such,  the  execution  must  be  against  his  (ward's)  property 
only,  unless  the  guardian  has  made  himself  liable.-''^  But  such 
insane  ward  cannot  be  held  to  bail  or  his  body  be  taken  in  ex- 
ecution on  any  penal  action/' - 

§  514.  Sale  of  Real  Estate. — If  the  personal  estate  be  in- 
sufficient to  discharge  the  debts,  maintain  the  ward  and  his 
family,  or  for  the  education  of  his  children,  the  guardian 
shoufd  apply  by  petition  to  the  court  for  authority  to  mort- 
gage, lease  or  sell  the  whole  or  so  much  of  the  real  estate  as 
may  be  necessary  to  supply  the  deficiency.  The  petition  must 
set  forth  the  particulars  of  the  amount  of  the  estate,  real  and 
personal,  of  the  ward,  and  of  the  debts  by  him  owing,  accom- 
panied by  a  full,  true  and  perfect  account  of  the  guardianship 
of  the  petitioner,  showing  the  application  of  the  funds  which 
have  come  into  his  hands. "^ 

2  7  Rev.  St.  1909,  §  512. 

2  8Tolson's  Adni'r  v.  Garner,  15  ISIo.  494;  Eaton's  Adm'r  v.  Terry. 
29  Mo.  96;  Coleman  v.  Farrar,  112  Mo.  54.  20  S.  W.  441;  Raunells 
V.  Gerner,  SO  Mo.  474  ;  AVells  v.  Covenant  Mut.  Ben.  Ass'n,  120  Mo. 
(•,30,  29  S.  W.  GOT;  Rhoades  v.  Fuller,  1.39  Mo.  179,  40  S.  W.  700; 
Bevin  v.  Powell,  S3  Mo.  365 ;  Cutler  v.  Zollinger.  117  Mo.  92.  22  S. 
W.  895. 

29  Rev.  St.  1909,  §  497;  Hayes  v.  Miller,  81  Mo.  424;  Collins  v. 
Trotter,  SI  Mo.  275 ;  Wisdom  v.  Shanklin,  74  Mo.  App.  428 ;  Koenig 
V.  Union  Depot  R.  Co.,  194  Mo.  564,  92  S.  W.  497 ;  Reed  v.  Wilson. 
13  Mo.  28. 

30  Reed  v.  Wilson,  13  Mo.  29;    Hayes  v.  Miller,  81  Mo.  424. 

31  Rev.  St.  1909,  §  514;  Hiuiter  v.  Kansas  City  Safe-Deposit  & 
Savings  Bank,  15S  Mo.  262,  58  S.  W.  1053 ;  Frost  v.  Bedford,  127 
Mo.  492,  30  S.  W.  179;  Citizens'  State  Bank  v.  Berry,  79  Mo.  App. 
472. 

3  2  Rev.  St.  1909,  §  513. 

S3  Rev.  St.  1909.  S§  502.  .503;  Michael  v.  Locke,  80  Mo.  548;  State 
v.  Jones,  S9  Mo.  470.  1  S.  W.  355. 


532  PERSONS   OF    UNSOUND    MIND  §  515 

§  515.  Order  of  Sale,  Terms  and  How  Conducted. — If  it 
appear  to  the  court,  upon  examination  of  the  matter,  that  the 
personal  estate  is  insufficient  for  the  purposes  mentioned,  and 
that  the  property  has  been  applied,  as  far  as  the  circumstances 
of  the  case  rendered  it  proper,  the  court  must  make  an  order, 
directing-  the  mortgage,  lease  or  sale  of  the  whole  or  part  of 
the  estate  as  may  be  necessary  or  proper.  The  order  must 
direct  the  time  and  terms  of  sale  (and  whether  it  shall  be  sold 
at  public  or  private  sale),  or  if  a  mortgage  or  lease  be  ordered, 
the  terms  of  such  mortgage  or  lease,  and  the  manner  in  which 
the  proceeds  shall  be  secured,  and  the  income  or  proceeds 
thereof  appropriated.^* 

The  sale  must  be  conducted  in  the  same  manner,  and  the 
same  proceedings  be  had  in  reference  thereto  as  in  cases  of 
sales  of  real  estate  of  minors. ^^ 

§  516,  Sales  for  Reinvestment — Of  Non-Residents. — 
■Made  for  like  causes,  and  the  same  proceedings  had  with  ref- 
erence thereto,  as  in  cases  of  sales  of  real  estate  of  minors  for 
reinvestment.  So,  sales  of  real  estate  of  non-resident  insane 
persons  must  be  conducted,  and  the  same  proceedings  had 
with  reference  thereto,  as  in  cases  of  sales  of  real  estate  of 
non-resident  minors.^*' 

§  517.  Mortgage  or  Lease  to  be  Approved — Effect  of 
Conveyance. — When  the  court  orders  a  lease  or  mortgage 
of  any  estate,  no  deed  or  instrument  of  writing  can  be  ex- 
ecuted for  that  purpose  until  the  court  has  approved  the  agree- 
ment made  by  the  guardian  under  such  order.  Every  convey- 
ance, mortgage,  lease  and  assurance,  made  under  the  order 
of  the  probate  court,  pursuant  to  the  law,  will  be  valid  and  as 
effectual  as  if  the  same  had  been  executed  by  the  insane  per- 
son when  of  sound  and  disposing  mind  and  memory.^ ^ 

§  518.  Settlements. — The  guardian  must,  once  a  year  or 
oftener,  if  recjuired  by  the  court,  render  a  just  and  true  ac- 
count of  his  guardianship,  and  make  settlement  thereof  with 
the  court. ^"^  And  when  the  ward  has  been  restored  and  dis- 
charged from  the  care  of  the  guardian,  such  guardian  must 
immediately  settle  his  accounts,  and  restore  to  such  person  all 
things  remaining  in  his  hands  belonging  or  appertaining  to 

3  4  Rev.  St.  1909,  §§  504,  505.  sb  Rev.  St.  1909,  §  .506. 

3  0  Rev.  St.  1909,  §§  507,  508;  Crockett  v.  Althouse,  35  Mo.  App. 
404. 

3  7  Rev.  St.  1909,  §§  509,  510;    Rannells  v.  Gerner,  80  Mo.  474. 
38  Rev.  St.  1909,  §  511;   State  v.  Jones,  89  Mo.  470,  1  S.  W.  355. 


§  520  PERSONS   OF   UNSOUND   MIND 


533 


him.  So,  if  the  ward  dies,  the  power  of  the  guardian  ceases, 
and  the  estate  will  descend  and  be  distributed  in  the  same  man- 
ner as  if  he  had  been  of  sound  mind,  and  the  guardian  must 
immediately  settle  his  accounts  and  deliver  the  estate  and  ef- 
fects of  the  ward  to  his  personal  representative. 

§  519.  Same— Removal  or  Death  of  Guardian. — The  pro- 
bate court  may  remove  the  guardian  at  any  time  for  neglect  of 
duty,  misconduct  or  mismanagement,  or  disobedience  to  any 
lawful  order,  and  appoint  another.  So,  if  the  guardian  die, 
resign,  or  be  removed  from  his  trust,  the  probate  court  has  the 
same  authority  to  proceed  against  the  guardian  and  his  sureties 
as  it  has  in  like  cases  over  executors  and  administrators  and 
their  sureties.^'' 

§  520.  Upon  the  Death  of  the  Insane  Ward  the  power 
of  the  guardian  will  cease  and  the  estate  will  descend  and  be 
distributed  as  if  he  were  of  sound  mind,  and  the  guardian  must 
settle  his  accounts  and  deliver  the  estate  to  his  personal  repre- 
sentatives. The  guardian  must  make  a  just  and  true  exhibit 
of  his  accounts  and  file  it  in  the  court,  and  cause  a  copy  with 
a  written  notice  stating  the  day  and  court  when  and  where  he 
will  make  his  settlement,  to  be  delivered  to  the  representatives 
of  the  ward  at  least  four  weeks  before  the  first  day  of  the  term 
at  which  the  settlement  is  to  be  made.  If  such  copy  and  notice 
cannot  be  delivered  to  the  persons  entitled  to  it,  the  court  may 
order  notice  of  the  filing  of  the  exhibit  and  when  and  where 
the  settlement  is  to  be  made,  to  be  given  by  publication  for 
four  weeks  next  before  the  first  day  of  the  term,  in  some 
newspaper  printed  in  the  English  language  in  the  county,  if 
there  be  one,  if  not,  then  by  printed  hand-bills  put  up  in  at  least 
six  of  the  most  public  places  in  the  county,  to  be  designated  by 
the  court.  At  the  time  specified,  upon  satisfactory  proof  that 
notice  has  been  given  as  required,  the  court  will  examine  the 
accounts,  corrects  all  errors,  if  there  be  any,  and  make  final 
settlement  with  the  guardian ;  or  the  court  may,  for  good 
cause,  continue  the  settlement  and  proceed  therein  at  the  time 
agreed  upon  by  the  parties  as  fixed  by  the  court.*" 

The  parties  in  interest  may  appear  before  the  court  and 
w^aive  the  notice  and  complete  the  settlement,  and  procure  the 
discharge  of  the  guardian.     Such  a  settlement  is  a  final  one, 

3  9  Rev.  St.  1909.  §§  522.  52?.:  Hall  v.  Audrain  County  Court,  27 
Mo.  329;    Morris  v.  Morris.  12S  Mo.  App.  673,  107  S.  W.  405. 

■»o  Rev.  St.  1909,  §  521;  Coleiuau  v.  Farrar,  112  Mo.  54,  20  S.  W. 
441. 


534  PERSONS   OF  UNSOUND   MIND  §  521 

and  the  judgment  of  the  probate  court  setthng  the  accounts  is 
a  final  judgment  from  which  an  appeal  will  lie.*^ 

§  521.     The  County  Court  Should  Grant  Support. — If  the 

estate  of  the  ward  be  insufficient  to  pay  his  debts,  to  maintain 
himself  and  family,  or  educate  his  children,  the  guardian  may 
apply  to  the  county  court,  by  petition,  setting  forth  the  par- 
ticulars, and  praying  for  an  appropriation  from  the  county 
treasury  for  the  support  of  his  ward.  The  petition  must  be 
accompanied  by  a  true  and  perfect  account  of  the  guardian- 
ship, an  inventory  of  the  estate  and  effects,  and  a  list  of  the 
debts  due  from  such  ward,  and  it  must  be  verified  by  the  af- 
fidavit of  the  petitioner. *- 

If  the  county  court  be  satisfied  that  the  estate  and  effects  are 
insufficient  for  the  purposes  specified  the  court  may  order  such 
sum  to  be  paid  to  the  guardian  out  of  the  county  treasury, 
as  may  appear  reasonable,  and  cause  a  warrant  to  be  issued 
accordingly.  But  no  allowance  can  be  made  at  any  time  for 
a  longer  period  than  one  year,  nor  be  made  at  any  time,  unless 
the  guardian  has  duly  accounted  and  settled  with  the  probate 
court,  for  the  moneys  and  effects  which  have  come  to  his  hands 
for  the  support  of  his  ward,  out  of  the  county  treasury  or  oth- 
erwise.*^ 

§  522.     Proceedings  when  Ward  has  Recovered. — If  any 

person  file  in  any  probate  court  of  any  county  in  the  state  alle- 
gation in  writing,  verified  by  oath  or  affirmation,  that  any  per- 
son declared  by  such  court  to  be  of  unsound  mind  has  been 
restored  to  his  right  mind,  the  court  must  hold  an  inquiry  as 
to  the  sanity  of  such  person,  and  if  the  court  find  that  he  is 
not  restored  to  his  right  mind  such  person  or  any  one  for  him 
may  within  ten  days  after  such  finding  file  an  allegation  in 
writing  verified  by  oath  that  such  person  is  of  sound  mind  and 
is  aggrieved  by  tlie  action  and  finding  of  the  court,  the  court 
must  then  cause  the  facts  to  be  inquired  by  a  jury.  If  it  be 
found  that  he  has  been  restored  to  his  right  mind,  he  must  be 
discharged  from  the  care  and  custody  of  the  guardian,  and 
the  guardian  must  settle  his  accounts  and  hand  over  to  the 
ward  whatever  remains  of  his  estate.**     If  it  be  found  that 

41  Coleman  v.  Farrar,  112  Mo.  54,  20  S.  W.  441. 

4  2  Rev.  St.  1900,  §§  515,  516. 

4;:  Rev.  St.  1909,  §§  517,  518;  Cox  v.  Osage  County,  10.3  Mo.  385, 
15  S.  \V.  70.3. 

44  Rev.  St.  1909,  §§  519,  520;  McKenzie  v.  Donnell,  151  Mo.  431, 
r,2  S.  W.  214. 


§  523  PERSONS   OF  UNSOUND   MIND 


535 


such  person  has  not  been  restored  to  his  right  mind,  the  per- 
son at  whose  instance  the  inquiry  was  had,  may,  in  the  dis- 
cretion of  the  court,  be  required  to  pay  the  costs  of  the  pro- 
ceeding. When  the  ward  apphes  to  the  court  to  be  relieved 
from  guardianship  on  the  ground  that  he  has  been  restored 
to  reason,  this  will  be  taken  as  an  admission  that  the  proceed- 
ings against  him  were  valid,  and  he  cannot  afterward  object 
in  a  collateral  proceeding  that  the  inquisition  was  invalid  for 
want  of  notice  to  him.'*'  In  general,  the  proceeding  must  con- 
form to  the  statute  or  it  will  be  void.''" 

§  523.  Insane  May  be  Confined. — If  any  person  be  furi- 
ously mad  or  so  disordered  in  mind  as  to  endanger  himself  or 
the  person  or  property  of  others,  the  guardian  or  person  un- 
der whose  care  he  may  be  and  who  is  bound  to  provide  for 
his  support  must  confine  him  in  some  suitable  place  until  the 
next  sitting  of  the  probate  court,  which  must  make  such  order 
for  the  restraint,  sui:)port  and  safe  keeping  of  such  person  as 
the  circumstances  of  the  case  may  require.  If  he  shall  not  be 
confined  by  the  person  having  him  in  charge,  or  there  be  no  per- 
son having  such  charge,  any  judge  of  a  court  of  record,  or 
any  two  justices  of  the  peace,  may  cause  such  insane  person 
to  be  apprehended  and  may  employ  any  person  to  confine  him 
in  some  suitable  place  until  the  probate  court  shall  make  fur- 
ther orders  therein  as  above  specified. 

The  expenses  attending  such  confinement  must  be  paid  by 
the  guardian  out  of  the  estate  of  the  ward  or  by  the  person 
bound  to  provide  for  and  support  him,  or  out  of  the  county 
treasury  upon  the  order  of  the  county  court,  duly  certified  to 
it  by  the  probate  court.*^ 

Certificate 

State  of  ,         Igg     jjj  ^jj^.  Probate  Court  of  said  county. 

County  of  •  \ 

In  the  matter  of  tbe  insanity  of of county. 

To  tbe  county  of  county: 

,  a  citizen  of  this  county  was.  after  due  examination  had 

in  this  court,  on  tlie  day  of  10—,  adjudged  to  be  iu- 


•«5Dutcher  v.  Hill,  29  Mo.  271,  77  Am.  Dec.  572. 

*o  State  ex  rel.  Kiel  v.  Baird,  47  Mo.  301. 

4T  Rev.  St.  1909.  §!!  'V2i,  525.  526;  Cox  v.  Osage  County,  103  Mo. 
.",85,  15  S.  W.  703;  State  ex  rel.  Yaruell  v.  Cole  County  Court,  SO 
Mo.  SO. 


536  PERSONS   OF   UNSOUND  MIND  §  524 

sane,  and  not  having  siifficient  means,  known  to  this  court,  for 
maintenance,  was  by  an  order  of  this  court  placed  in  cus- 
tody of for  maintenance  at  the  expense  of  the  county. 

This  day  of  A.  D.  Id—. 

,  Probate  Judge. 

§  524.  Expenses  When  Ordered  to  the  Asylum. — If  any 
insane  person  be  admitted  into  the  State  Lunatic  Asylum  as  a 
patient,  the  guardian  must  pay  for  his  support  and  expenses  at 
the  asylum  out  of  his  estate ;  and  if  he  shall  at  any  time  come 
under  the  class  of  "insane  poor  person,"  as  specified  in  the 
law  for  the  government  of  the  State  Lunatic  Asylum  and  the 
care  of  the  insane,  he  shall  be  supported  and  maintained  at 
such  asylum  by  the  county  in  the  manner  provided  by  law.*^ 

§  525.  County  to  be  Repaid. — In  all  cases  of  appropria- 
tions out  of  the  county  treasury  for  the  support  and  mainte- 
nance or  confinement  of  any  insane  person,  the  amount  thereof 
may  be  recovered  by  the  county  from  any  person  who  by  law 
is  bound  to  provide  for  the  support  and  maintenance  of  such 
person,  if  there  be  any  of  sufficient  ability  to  pay  the  same.** 

§  526.  Curator  for  Non-Resident. — If  information  in 
writing  be  given  to  the  probate  court,  that  any  person  who  is 
a  non-resident  of  the  state  and  owns  property  in  the  county  lia- 
ble to  be  injured,  wasted  or  lost,  or  is  not  in  the  lawful  cus- 
tody of  some  responsible  person,  is  an  idiot,  lunatic,  or  person 
of  unsound  mind,  and  incapable  of  managing  his  affairs,  and 
praying  that  an  inquiry  thereinto  be  had,  the  court  must  cause 
the  facts  to  be  inquired  into  by  a  jury,  and  if  it  be  found  by 
the  jury  that  the  complaint  is  true,  the  court  must  appoint  a 
curator  of  the  estate  of  such  person.  The  court  and  the  cu- 
rator of  the  estate  of  such  person  have  the  same  powers  and 
must  perform  the  same  duties  as  in  other  cases,  except  that 
no  appropriation  can  be  made  out  of  the  county  treasury  for 
the  support  of  such  person. °*' 

§  527.  Guardian  May  Resign. — If  a  guardian  or  curator 
publish  for  four  weeks  in  a  newspaper  in  the  county  where 
the  proceedings  were  had,  if  there  be  one,  and  if  not,  in  the 
nearest  newspaper  to  such  county,  a  notice  of  his  intention 

4  8  Rev.  St.  1000,  §  528. 

48  Rev.  St.  1000,  §  527 ;  Montgomery  County  v.  Gupton,  139  M"o. 
303,  30  S.  W.  447,  40  S.  W.  1094 ;  Chariton  County  v.  Hartman,  190 
Mo.  71,  88  S.  W.  617. 

60  Rev.  St.  1909,  §§  529,  530. 


§  527  PERSONS    OF    UNSOUND    MIND  537 

to  apply  to  the  probate  court  to  resij^ni  his  trust,  and  the  court, 
on  proof  of  the  publication,  believe  that  he  should  be  permitted 
to  resign,  it  must  so  order  and  appoint  a  successor,  or  may 
certify  the  fact  of  the  resignation  to  the  county  court,  who  may 
assume  the  maintenance  of  the  patient  at  the  State  Lunatic 
Asylum ;  in  the  event  of  the  patient  being  at  the  time  an  in- 
mate of  said  asylum,  the  probate  court  may  provide  for  the 
safe  keeping  and  medical  treatment  in  said  asylum  of  said 
lunatic,  idiot,  or  person  of  unsound  mind,  in  the  manner  pro- 
vided by  law  in  relation  to  such  like  persons  residents  of  the 
several  counties.'*^ 

61  Rev.  St.  1909,  §  532. 


538  ADOPTION   OF  CHILDKEN  §  528 

CHAPTER  XLVI 
ADOPTION  OF  CHILDREN 

§  528.  Child  adopted,  how  in  Missouri. 

529.  Changing  name  of  adopted  child. 

530.  Adoption  of  child  under  seven  years  of  age. 

531.  County  court  may  award  custody  of  children. 

§  528.  Child,  How  Adopted. — Any  person  wishing  to 
adopt  a  child  or  children  as  his  hefrs  or  devisees  may  do  so 
by  deed  executed,  acknowledged  and  recorded  in  the  county 
of  the  residence  of  the  person  executing  the  same,  as  in  the 
case  of  conveyance  of  real  estate.  A  married  woman,  by 
joining  in  the  deed  with  her  husband,  may  with  him  adopt 
any  child  or  children.  And  from  the  time  the  deed  is  filed 
for  record  the  adopted  child  or  children  have  the  same  right 
against  the  person  executing  the  deed,  for  support  and  main- 
tenance and  proper  treatment  and  all  other  rights  and  priv- 
ileges that  a  child  has  against  its  parents.^  The  estate  of  a 
child  adopted  as  an  heir,  will  go  to  his  blood  relatives,  even 
where  the  estate  which  descends  is  derived  from  the  adopted 
parents.-  The  adopted  child,  though  above  the  age  of  mi- 
nority when  adopted,  will  inherit  from  adopted  parents  in 
like  manner  as  if  born  to  them  in  wedlock.^  It  may  inherit 
from  both  the  adopted  and  natural  parents,*  but  does  not 
become  an  heir  of  collateral  kindred  of  the  adopting  par- 
ents.^ And  it  may  be  disinherited.*^  And  the  children  of 
the  adopted  child  may  inherit  the  estate  or  portion  which 
would  belong  to  such  child  if  living.^     The  deed  is  only 

iRev.  St.  1909,  §§  1G71,  1G72,  1673. 

2  Reinders  v.  Koppelmann,  68  Mo.  482,  .30  Am.  Rep.  802 ;  In  re 
Clements,  78  Mo.  352 ;  Reinders  v.  Koppelmann,  94  Mo.  338,  7  S.  W. 
288 ;    Fosburgh  v.  Rogers,  114  Mo.  122,  21  S.  W.  82,  19  L.  R.  A.  201. 

3  Moran  v.  Steward,  122  Mo.  205,  26  S.  W.  962 ;  Moran  v.  Stew- 
art, 1.32  Mo.  73,  33  S.  W.  443;  Fosburgh  v.  Rogers.  114  Mo.  122.  21 
S.  W.  82,  19  L.  R.  A.  201 ;  In  re  Moran's  Estate,  151  Mo.  555,  52  S. 
W.  377 ;    Moran  v.  Moran,  151  Mo.  558,  52  S.  W.  378. 

*  Clarkson  v.  Hatton,  143  Mo.  47,  44  S.  W.  761,  39  L.  R.  A.  748, 
65  Am.  St.  Rep.  635. 

5  Hockaday  v.  Lynn,  200  Mo.  4.56.  98  S.  W.  585,  8  L.  R.  A.  (N.  S.) 
117,  118  Am.  St.  Rep.  672,  9  Ann.  Cas.  775. 

6  Steele  v.  Steele,  161  Mo.  566,  61  S.  W.  815. 

7  Healey  v.  Simpson,  113  Mo.  340,  20  S.  W.  881 ;  Barnum  v.  Bar- 
num,  119  Mo.  63,  24  S.  W.  780. 


§  528  ADorTiON  or  childukn  539 

binding  on  the  parties  who  execute  it,  and  the  privileges  of 
the  adopted  child  is  confined  to  them.  Such  deed  may  be 
in  the  following  form  : 

Deed  of  Adoption 

This  deed  made  and  entered  into  by  and  between  A.  B.  and  M.  B., 

his  wife,  of  the  county  of  and  state  of  Missouri  of  the  first 

part,  and  C.   D.  and  J.  D.,   his  wife,  of  the  county   of  and 

state  of ,  parents  of  II,  D.,  a  child  of  the  af^e  of years 

of  the  second  part,  and  the  said  R.  D.,  of  the  third  part.  (Give  the 
names  of  such  as  join  in  the  deed.)  Witnesseth,  tliat  the  said  par- 
ties of  ttie  first  part  for  and  in  consideration  of  the  sum  of  • 

dolhirs,  to  them  paid  by  the  parties  of  the  second  part,  the  receipt 
of  which  is  herel)y  acknowledged,  and  of  the  love  and  affection  they 
bear  the  said  R.  D.,  party  of  the  third  part,  have  adopted,  and  by 
these  presents  do  adopt  the  said  R.  D.,  as  and  for  their  child,  and 
heir,  as  fully  as  they  are  by  law  empowered,  to  do. 

And  the  said  parties  of  the  second  part  for  and  on  account  of 
the  consideration  above  expressed  do  consent  to  the  adoption  of 
the  said  R.  D.  by  the  parties  of  the  tirst  part  as  aforesaid,  and  do 
forever  release  and  resign  unto  the  said  parties  of  the  second  part, 
all  legal  rights  and  privileges  to  the  care,  custody  and  control  they 
may  have  to  or  over  the  said  R.  D.  as  parents  or  otherwise,  and  the 
said  parties  of  the  tirst  part  agree  to  support,  maintain  and  etlu- 
cate  the  said  R.  D.  and  Iiestow  upon  him  the  care  and  treatment 
due  from  parents  to  child. 

In  witness  whereof  the  said  parties  have  hereunto  set  their  hands 

and  seals  this day  of ,  10 — •.  A.  B. 

M.  B, 
C.  D. 

J.  D.     [Seal.] 
State  of  Mi.ssouri,     | 

County  of .  (    " 

On  this  day  of ,  10 — ,  before  me  personally  appeared 

A.  B.  and  M.  B.,  his  wife,  and  c:.  D.  and  .T.  D.,  his  wife,  to  me 
known  to  be  the  persons  descril)ed  in  and  who  executed  the  forego- 
ing instrument  and  acknowledged  that  they  executed  the  same  as 
their  free  act  and  deed. 

Witness  my  hand  and  seal.  H.  S.  R., 

Justice  of  the  Peace.     [Seal.l 

The  statute  forbids  any  foreign  corporation  to  place  an}' 
child  in  any  family  home  in  this  state  for  adopton  with  or 
without  indenture,  unless  the  corporation  furnishes  the  state 
board  of  charities  and  corrections  a  guaranty  that  no  child 
shall  be  brought  into  the  state  having  any  contagious  or  in- 
curable disease,  or  being  feeble  minded  or  of  vicious  char- 
acter, and  that  it  will  promptly  receive  and  remove  any 
such  child  brought  into  the  state  which  shall  become  a  pub- 
lic charge  within  five  years  after  being  brought   into   the 


540  ADOPTION   OF   CHILDREN  §  528 

State.    A  violation  of  this  statute  is  made  a  criminal  offense 
punishable  by  fine  and  imprisonment.^ 

Affidavit  as  to  Immoral  Character  of  Parents 

State  of  Missouri,     [ 

Couuty  of  .  J 

Now  come  A.,  B.,  C,  three  credible  citizens  of  said  county  and 
state,  and  who  being  duly  sworn  upon  their  oath  state  and  show 
to  the  county  court  of  said  county,  that  J.  D.  and  C.  D.  are  the 
lawful  parents  of  four  minor  children,  viz.:  H.  D.,  a  female  af^ed 
nine  years,  S.  D.,  a  male,  aged  seven  years,  T.  D.,  a  female,  aged 
four  years  and  R.  D.,  a  female,  aged  three  years;  that  sa^id  J.  D. 
and  C.  D.,  parents  of  said  minor  children,  are  now  and  for  four 
years  last  past  have  been  habitually  intemperate,  and  grossly  im- 
moral, being  guilty  of  leading  a  life  of  drunkenness,  licentiousness 
and  shame,  (and  habitually  neglecting  said  children,  and  treating 
them  inhumanly  by  inflicting  upon  them  severe  and  excessive  cor- 
poral punishment  and  exposing  them  to  cold  and  inclement  weather) 
and  are  permitting  said  children  to  associate  with  immoral  charac- 
ters in  such  manner  and  to  such  extent  as  to  render  it  reasonably 
probable  that  said  children  will  be  raised  up  to  a  life  of  crime  and 
shame,  unless  they  are  awarded  to  the  care  and  custody  of  some 
person  or  persons  where  they  may  receive  proper  moral  training, 
care  and  attention.  ■ 


Subscribed   and  sworn  to  before  me  this  day   of 


19 — .  ,  Clerk  of  County  Court. 

Upon  the  filing  of  the  affidavit  the  county  court  should 
set  a  day  for  the  hearing  of  the  complaint  and  give  the  par- 
ents reasonable  notice  thereof  in  writing.  Probably  not  less 
than  five  nor  more  than  ten  days'  notice  would  be  consid- 
ered reasonable. 

§  529.  Changing  Name  of  Adopted  Child. — If  it  be  de- 
sirable to  change  the  name  of  the  child  to  that  of  the  adopted 
parent,  it  may  be  done  by  the  probate  court  by  an  order  to 
that  effect  entered  in  the  record  of  its  proceedings.^  In  case 
the  deed  of  adoption  does  not  comply  with  the  requirements 
of  the  law,  it  may  constitute  the  basis  for  an  action  of  spe- 
cific performance  in  a  court  of  equity.^**  So  a  contract  for 
adoption  may,  upon  proper  showing,  be  specifically  enforced 

8  Rev.  St.  1909,  §§  1707,  1708. 

»  Rev.  St.  1909,  §  1674. 

10  Healey  v.  Simpson,  113  Mo.  340,  20  S.  "W.  881;  Sharkey  v.  Mc- 
Dermott,  91  Mo.  047,  4  S.  W.  107,  60  Am.  Rep.  270 ;  Wales  v.  Hol- 
deu.  209  :Mo.  552,  108  S.  W.  89;  McElvain  v.  McElvain,  171  Mo.  244, 
71  S.  W.  142. 


§  530  ADOPTION   OF   CHILDREN  541 

in  a  court  of  equity,  under  like  conditions  and  circumstances 
as  other  contracts/'  and  cases  cited/-  The  statute  does 
not  require  a  petition  or  other  formal  application  to  be  made 
to  the  probate  court,  but  authorizes  the  court,  in  its  dis- 
cretion, by  an  order  of  record,  to  change  the  name  of  any 
adopted  child.    The  order  may  be  as  follows: 

Order  Changing  Xante  of  Child 

In  the  matter  of  the  adoption  of) 

R.    D.,    minor    child    of  C.    D.  [.Chansini,'  Name. 

and  J.  I),  and  A.  B.  and  M.  B.J 

Now  at  this  day  come  A.  B.  and  AI.  B.,  his  wife,  and  show  to  the 

court  that  on  the  day  of  ,  19—,  by  deed  of  adoption 

duly  executed,  acknowle<lsed  and  recorded  (as  in  the  case  of  a  cx)n- 

veyance  of  real  estate)  in  the  county  of ,  they  adopted  11.  D., 

minor  fhild  of  C.  D.  and  J.  D.,  as  and  for  their  child  and  heir  at 
law,  with  the  assent  of  the  said  C.  D.  and  J.  D.,  who  joined  in  the 
execution  of  said  deed  as  parties  thereto;  and  they  ask  the  court 
to  change  the  name  of  said  adopted  child  from  R.  D.  to  R.  B.,  so 
that  it  shall  bear  the  name  of  its  adopted  parents;  it  is  therefore 
ordered  that  the  name  of  said  adopted  child  l)e  and  the  same  is  by 
this  order  chanj.'ed  from  R.  D.,  to  R.  B.,  so  that  henceforth  the  said 
adopted  child  shall  be  known  as  and  by  the  name  of  R.  B.,  child 
and  heir  of  A.  B.  and  M.  B.,  its  adopted  parents. 

§  530.     Adoption  of  Child  Under  Seven  Years  of  Age.— 

When  a  child  below  seven  years  of  age,  intrusted  by  its 
parents  to  a  legally  incorporated  institution  for  the  care  of 
minor  children  or  to  an  individual  conducting  such  an  in- 
stitution, has  been  abandoned  by  its  parents  for  a  period  of 
two  years,  or  when  such  institution  has  received  for  care 
and  custody  a  child  of  the  age  aforesaid,  and  it  has  been 
thereafter  abandoned  for  two  years,  such  institution  by  its 
principal  officer,  by  and  with  the  approval  of  the  probate 
court,  may  execute  a  deed  of  adoption  to  any  proper  person 
or  persons  in  this  state  who  may  desire  to  adopt  such  child, 
and  who  must  join  in  the  execution  of  the  deed,  which  must 
be  executed,  acknowledged  and  recorded  in  the  county  or 
city  in  which  such  institution  is  located,  and  from  the  time 
of  filing  the  same  with  the  recorder,  the  child  or  children 
adopted  will  have  and  be  entitled  to  all  the  rights  of  lawful 
children  against  their  adopted  parent  or  parents,  and  such 
adopted  parent  or  parents  will  have  and  be  entitled  to  all 

n  Ilealey  v.  Simpson,  113  Mo.  340,  20  S.  W.  SSI. 
1^  Lynn  v.  Ilockaday,  162  Mo.  Ill,  61  S.  W.  885,  85  Am.  St.  Rop. 
ISO. 


542  ADOPTION    OF    CHILDREN  §  531 

the  rights  of  lawful  parents  against  such  adopted  child  or 
children,  to  the  exclusion  of  any  rights  of  its  lawful  par- 
ents.^^  * 

§  531.  County  Court  May  Award  Custody  of  Children, 
Etc. — If  it  be  shown  to  the  county  court  by  the  affidavit  of 
not  less  than  three  credible  citizens  of  the  county  that  the 
parent  or  parents  of  any  minor  child  are  habitually  intem- 
perate or  inhuman  to  such  child  or  grossly  immoral  in  any 
manner  to  such  an  extent  as  to  render  it  reasonaljly  probable 
that  such  child  will  be  raised  up  to  a  life  of  crime  or  shame, 
the  court  will  set  a  day  for  the  hearing  of  the  matter  and 
give  the  parents  reasonable  notice  thereof;  and  if  upon  the 
hearing  the  court  shall  believe  the  facts  stated  in  the  affida- 
vit to  be  true,  it  may  award  the  custody  of  the  child  to  some 
person  or  persons  or  nonsectarian  institution,  where  it  may 
receive  proper  moral  training,  care,  education  and  attention, 
or  have  an  opportunity  to  grow  up  under  proper  surround- 
ings, and  for  such  care,  education  and  attention  the  court 
may  award  a  reasonable  amount  out  of  the  pauper^  fund.^* 

13  Rev.  St.  1909,  §  1G75. 

14  Rev.  St.  1909,  §  1076. 

*Thi.s  statute  was  probably  intended  to  give  ttie  adopted  parent 
the  right  to  inherit  from  the  adopted  child  to  the  exclusion  of  its 
natural  parents,  and  it  may  and  probably  does  have  that  effect  in 
the  circumstances  mentioned  in  this  statute.  It  ought  to  be  ex- 
tended to  all  cases  of  adopted  children. 


§  532  APPRENTICES  543 


CHAPTER  XLVII 
APPRENTICES 

§  032.  Minors  may  be  liound. 

533.  Incompetency  of  parents,  liow  determined. 

534.  Tlie  indenture  of  apprenticesbip. 

535.  Ti'eatment  of  apprentices — Complaint  against  the  master. 

536.  Proceedings  against  apprentice. 

537.  Duty  of  tbe  court  on  the  liearing,  etc. 

538.  Proceedings  on  the  discharge  of  apprentice. 

539.  Enticing  away  and  harboring. 

540.  Removal  from  the  state  not  allowed. 

541.  The  law  applies  to  whom. 

§  532.  Minors  May  be  Bound. — Minors — males  to  the 
age  of  twenty-one  years,  and  females  to  the  age  of  eighteen, 
or  to  the  time  of  their  marriage  within  that  age,  may  be 
bound  to  some  appropriate  industry,  art,  calling  or  trade. 
If  under  fourteen  years  of  age,  such  minors  may  be  bound 
by  the  father,  or  if  he  be  dead  or  incompetent,  or  has  wil- 
fully abandoned  his  family  for  six  months  without  making 
suitable  provision  for  their  support,  or  become  an  habitual 
drunkard,  by  the  mother  or  legal  guardian  ;  and  illegitimate 
children  may  be  bound  by  the  mother,  and  if  they  have  no 
parent  competent  to  act,  and  no  guardian,  they  may  bind 
themselves  with  the  approbation  of  the  probate  court  of  the 
county  where  they  reside.  The  power  of  the  mother  to  bind 
her  children,  whether  legitimate  or  illegitimate,  ceases  with 
her  subsequent  marriage,  and  cannot  be  exercised  by  her- 
self or  her  husband  at  any  time  during  such  marriage.  Mi- 
nors above  fourteen  may  be  bound  in  the  same  manner,  but 
when  they  are  bound  by  the  parent  or  guardian  the  consent 
of  the  minor  must  be  expressed  in  the  indenture,  and  testi- 
fied by  his  signing  the  same.^ 

The  executor  who,  by  the  will  of  a  father,  is  directed  to 
bring  up  his  child  to  some  trade  or  calling,  may  bind  such 
child  by  indenture  in  like  manner  as  the  father,  if  living, 
might  have  done,  or  may  raise  such  child  according  to  such 
direction.^ 

The  probate  court  may  bind  a  poor  child  who  is  charge- 
able to  the  county,  or  who  begs  for  alms,  or  whose  parents 

1  Rev.  St.  1909,  §§  1G79,  IGSO,  IGSl.  2  Rev.  St.  1909,  §  1GS2. 


544  APPRENTICES  §  532 

are  chargeable  to  the  county,  or  beg  alms,  or  are  poor  and 
the  father  an  habitual  drunkard,  or  if  there  be  no  father 
and  the  mother  is  of  bad  character  or  suffers  her  children 
to  grow  up  in  habits  of  idleness  without  any  visible  means 
of  obtaining  an  honest  livelihood.  In  such  case  males  may 
be  bound  until  the  age  of  twenty-one  years  and  females  to 
the  age  of  eighteen.^ 

An  orphan  minor,  who  has  not  sufficient  estate  for  his 
maintenance  may  be  bound  by  his  guardian,  under  the  or- 
der and  direction  of  the  probate  court,  which  will  be  as  ef- 
fectual as  if  the  minor  were  of  full  age,  and  the  counterpart 
of  the  indenture  for  the  benefit  of  such  minor  must  be  de- 
posited with  the  clerk  of  the  probate  court  for  safe  keep- 
ing.* 

§  533.  Incompetency  of  Parent,  How  Determined. — 
Facts  of  incapacity,  desertion  or  drunkenness  must  be  de- 
cided in  the  probate  court,  by  the  judge  thereof,  or  by  a 
jury,  if  one  be  demanded,  before  the  indenture  shall  take 
effect;  and  an  indorsement  on  the  indenture,  under  the  seal 
of  the  court,  that  the  same  are  proved  will  be  sufficient  evi- 
dence of  the  mother's  or  guardian's  power  to  give  such 
consent;  but  if  the  judge  or  jury  do  not  find  the  charge  of 
incapacity,  drunkenness  or  desertion  to  be  true,  the  person 
at  whose  instance  the  proceedings  may  be  had  must  pay 
all  costs  attending  the  same.^ 

Petition  for  ApprenticesJiip   of  Children 

State  of  -—       ,  )  j^^  ^^^  Probate  Court,  Term,  19—. 

County  of .  j 

In  the  matter  of  alleged  incompetency  ^ 

of   Abel    Poor  and   Mary    Poor,   par-  I  Petition  for  Apprenticeship 
ents,  to  care  for  their  children.  J      of  Children. 

To  the  Probate  Court  of  said  county: 

The  undersigned  would  respectfully  represent  to  said  court,  that 
Abel  Poor,  a  resident  of  said  county,  has  become  an  habitual  drunk- 
ard, and  jNIary  Poor,  wife  of  said  Abel  Poor,  is  a  woman  of  bad 
character;  that  said  Abel  Poor  and  Mary  Poor  are  the  parents  of 
two  minor  children,  viz:  John  Poor,  of  the  age  of  ten  years,  and 
Sarah  Poor,  of  the  age  of  eight  years ;  that  said  parents  are  unsuit- 
able and  Incompetent  to  have  the  care  and  control  of  their  said  mi- 
nor children  and  are  suffering  said  children  to  grow  up  in  idleness 
without  any  visible  means  of  obtaining  an  honest  livelihood;    where- 

«  Rev.  St.  1909,  §  1083.  6  Rev.  St.  1909,  §  1685. 

4  Rev.  St.  1909,  §  11)84. 


§  534  APPRENTICES  545 

fore  he  asks  that  the  matters  herein  charged  be  Inquired  Into  by  the 
court  or  by  a  jury,  uiid  if  found  to  be  true,  that  said  children  be 
bound  and  apprenticed  by  the  court  to  some  appropriate  industry, 
art,  calling  or  trade,  as  authorized  and  provided  for  by  law. 
Subscribed  and  sworn  to,  etc.  WILL  MEDDLESOME. 

P.  MERCER,  Probate  Judge. 

The  parents  complained  against  should  be  notified  of  the 
complaint  and  of  the  time  and  place  set  for  hearing  it,  by  a 
summons  or  other  written  notice,  and  be  given  an  oppor- 
tunity to  be  heard  in  their  own  behalf. 

§  534.  The  Indenture. — No  minor  can  be  bound  unless 
by  an  indenture  in  two  parts,  sealed  and  delivered  by  both 
parties,  and  when  made  with  the  approbation  of  the  pro- 
bate court,  or  the  judge  thereof  in  vacation,  such  approba- 
tion must  be  certified  in  writing,  indorsed  upon  each  part  of 
the  indenture;  one  part  must  be  kept  for  the  use  of  the  mi- 
nor by  the  parent  or  guardian,  when  executed  by  them  re- 
spectively ;  and  when  made  with  the  approval  of  the  court, 
must  be  deposited  with  the  clerk  and  kept  in  his  ofifice  for 
the  use  of  the  minor." 

The  age  of  the  apprentice  must  be  inserted  in  the  inden- 
ture, otherwise  it  is  void ;  and  when  the  probate  court  binds 
out  an  orphan  or  poor  child  as  an  apprentice,  among  other 
covenants  a  clause  to  this  effect  must  be  inserted  in  the  in- 
denture ;  that  the  master  to  whom  the  minor  is  bound  shall 
cause  to  be  given  to  such  minor  a  common  school  educa- 
tion, and  at  the  expiration  of  such  apprenticeship  shall  give 
such  apprentice  a  new  bible  and  two  new  suits  of  clothes, 
to  be  worth  fifty  dollars,  and  twenty  dollars  in  current 
money  of  the  United  States.^ 

Indenture  of  Apprenticeship 

This  indenture  made  this  day  of  ,  19 — ,  between  J. 

W.,  of  the  age  of  years  on  the  day  of  ,  19 — , 

son  of  R.  W.,  deceased,  of  the  county  of and  state  of , 

of  the  tirst  part,  and  II.  H.,  of  the  same  place,  of  the  second  part, 
witnesseth  that  the  said  J.  W.,  by  and  with  the  consent  of  M.  W., 
his  mother,  signified  by  the  signature  of  the  said  M.  W.,  affixed  to 
this  indenture,  and  by  his  own  free  will  and  consent,  hath  placed 
and  bound   himself  apprentice  to  the  said  H.  H.  to   learn  the  art 

and  trade  of  ,  which  the  said  II.   H.  now  follows,  with  him 

the  said  H.  H.  to  dwell,  continue  and  serve  as  an  apprentice  afore- 

«  Rev.  St  1909.  §§  1GS6,  1687 ;    Lally  v.  Cantwell,  40  Mo.  App.  44. 
7  Rev.  St.  1909,  §§  1GS8,  1689. 
Kel.Mo.P.G.— 35 


546  APPRENTICES  §  534 

said  for  and  during  the  term  and  period  of years  and 

mouths  and  days  from  the  date  hereof,  which  will  be  until 

the day  of  19 — ,  at  which  time  the  said  J.  W.,  if  he 

so  long  live,  will  be  of  the  age  of  ;    during  all  of  which  the 

said  H.  H.,  his  said  master,  the  said  J.  W.  shall  faithfully  and  dili- 
gently serve,  in  all  such  lawful  business  as  he  shall  be  put  to  by 
his  said  master,  according  to  the  best  of  his  abilities,  and  conduct 
himself  honestly  and  orderly  toward  the  family  of  the  said  H.  II. 
(If  any  money  or  property  be  advanced  by  the  parties  or  either  of 
them,  insert  a  clause  stating  the  fact). 

And  the  said  H.  H.  doth  covenant  and  agree  to  and  with  the  said 
J.  W.  to  teach  and  instruct  him,  or  cause  him  to  be  well  and  suffi- 
ciently  instructed  under  his   personal   supervision  in   the   art   and 

trade  of  aforesaid,  after  the  best  way  and  manner  he  can ; 

and  further,  that  he  the  said  H.  H.,  will  provide  for  and  allow  the 
said  J.  W.  meat,  drink,  washing,  lodging  and  apparel  for  working 
and  such  also  as  will  be  suitable  for  Sundays  and  holidays,  and  all 
other  necessaries  usual,  proper  and  suitable  for  an  apprentice  at 
such  employment,  during  the  term  aforesaid;  and  the  said  H.  H. 
shall  send  J.  W.  to  school  at  least months  in  each  year  dur- 
ing said  term  of  apprenticeship  (or  shall  give  him  a  common  school 
education),  and  at  the  expiration  of  said  term  of  service,  shall  give 
to  him  a  new  bible  and  two  new  suits  of  clothes,  of  the  value  of 

fifty   dollars,   a   set  of  tools   and  dollars  in  current 

money.  (Set  out  the  stipulations  and  covenants  as  may  be  agreed 
upon.) 

In  witness  whereof,  the  said  J.  W,  and  his  mother,  M.  W.,  and 
the  said  H.  H.  have  hereunto,  and  to  duplicates  hereof,  respectively 
set  their  hands  and  seals  the  day  and  date  first  above  written. 

J.  W.      [Seal.] 


M.  W.     [Seal.] 
H.  H.      [Seal.] 


Signed,  sealed  and  delivered  in  presence  of 
R.  R. 
T.  T. 


The  father,  mother  or  guardian  may  covenant  to  answer 
for  the  default  of  the  apprentice  by  the  following  indorse- 
ment on  the  indenture : 

In  consideration  of  the  covenants  and  agreements  in  the  within 
indenture  to  be  kept  and  performed  by  the  said  II.  H.  to  and  with 
my  son  J.  W.,  within  named,  I  do  hereby  bind  myself  to  the  said 
H.  H.  for  the  true  and  faithful  performance  and  observance  by  the 
said  J.  AV.  of  the  matters  and  things  to  be  performed  and  observed 
on  his  part  in  and  by  the  said  indenture  stipulated ;  and  I  do  cove- 
nant to  and  with  said  II.  H.  that  the  said  J.  W.  shall  in  all  things 
well  and  truly  observe  the  .same. 
Witness  my  hand  and  seal  the  day  of  the  date  of  said  indenture. 

W.  B.  W.     [Seal.] 
Signed,  sealed  and  delivered  in  presence  of 
R.  R. 
T.  T. 


§  535  APPRENTICES  547 

This  form  may  be  readily  adapted  to  use  in  any  case. 
When  an  infant  who  has  no  parent  or  guardian  binds  him- 
self, the  indenture  may  be  indorsed  as  follows: 

Approbation  of  the  Court 

Be  it  known  that  the  probate  court  of county,  and  state  of 

Missouri,  or  tlie  judae  tliereof  in  vacation,  does  consent  to  and  ap- 
prove  of  the  witliiu  indenture  of  appreuticesliip,  and  the  same  was 

entered  into  and  executed  on  the  part  of an  infant  of  the  age 

of  years,  who  has  no  parent  or  guai-dian,  with  the  consent 

and  approbation  of  said  court  or  judge. 

P.  L ,  Judt'e  of  Probate. 

§  535.  Treatment  of  Apprentice. — Parents  and  guard- 
ians and  the  probate  court  must  inquire  into  the  treatment 
of  the  children  bound  out  by  them,  respectively,  or  with 
their  approbation,  and  of  all  who  were  bound  by  or  with 
the  approbation  of  their  predecessors  in  office,  and  defend 
them  from  cruelty,  neglect  and  breach  of  contract  on  the 
part  of  their  masters. 

The  court  must  hear  the  complaints  of  apprentices  who 
reside  within  the  county,  against  their  masters,  alleging  un- 
deserved or  immoderate  correction,  insufficient  allowance 
of  food,  raiment  or  lodging,  want  of  instruction  in  their 
trade  or  calling,  or  that  they  are  in  danger  of  being  removed 
out  of  the  state,  or  the  violation  of  the  indenture  of  ap- 
prenticeship, and  may  hear  and  determine  such  cases  by  a 
jury  or  otherwise,  and  make  such  order  therein  as  will  re- 
lieve the  party  injured  in  future.* 

Complaint  Against  Master 

State  of  — -       ,         ]  gg     jj^  ^j^g  Probate  Court. 

County  of  • .  j 

To  the  Honorable  Probate  Court  of  said  County: 

Now  conies  J.  W.  and  complains  to  the  court  that  he  is  an  ap- 
prentice duly  bound  by  indenture,  to  serve  H.  II.  of  said  county  of 

,  and  learn  the  art  and  trade  of  during  his  minority; 

that  his  term  of  service  has  not  expired  and  will  not  expire  until 

the day  of ,  19 — ,  at  which  time  he  will  be  twenty-one 

years  of  age;    that  said  II.   H.  did,   on  the  day  of  , 

19 — .  assault,  strike,  beat  and  wound  him,  the  said  J.  W.,  by  strik- 
ing him  on  the  head  with  a  large  club ;  and  on  divers  other  days 
and  times,  within  the  last  months,  did  undeservedly  and  im- 
moderately whip,  beat  and  abuse  him,  the  said  J.  V,'.,  without  any 

8  Rev.  St.  1909,  §§  1G91,  1G92. 


548  APPRENTICES  §  535 

just  cause  or  provocation;    and  that  for  and  during  the  period  of 

months,  next  hitherto,  the  said  H.  H.  has  not  provided  this 

comphiinant  with  a  sutficient  allowance  of  food  and  clothing  as  by 
said  indenture  he  stipulated  to  do,  but  to  do  so  has  wholly  failed 
and  refused  and  still  fails  and  refuses,  to  the  great  and  permanent 
detriment  and  injury  to  the  health  and  comfort  of  him,  the  said  J. 
W.  (set  out  the  things  complained  of).  Wherefore  he  asks  that  this 
complaint  be  inquired  into  by  the  court,  or  a  jury,  and  that  such 
orders  be  made  in  the  premises  as  will  relieve  this  complainant  and 
for  other  proper  relief. 

When  the  circumstances  require  it  the  court  may  dis- 
charge the  apprentice  from  his  apprenticeship;  and,  in  case 
any  money  or  other  thing  has  been  paid,  or  contracted  to  be 
paid,|by  either  party,  in  relation  to  such  apprenticeship,  the 
court  must  make  such  order  concerning  the  same  as  shall 
seem  just  and  reasonable.  If  the  apprentice  so  discharged 
had  been  originally  bound  by  the  probate  court,  it  will  be 
the  duty  of  the  court,  if  deemed  necessary,  again  to  bind 
such  apprentice,  if  under  age.  The  master  is'  liable  to  an  ac- 
tion on  the  indenture  for  a  breach  of  covenant  on  his  part 
therein  contained ;  and  the  damages  recovered  will  belong 
to  the  minor  and  be  applied  to  his  use  or  paid  to  him  when 
of  age;  or  if  a  female,  when  she  is  of  age  or  marries."  If 
the  action  is  not  brought  during  the  minority  of  the  appren- 
tice, he  may  bring  the  action  in  his  own  name  at  any  time 
within  two  years  after  he  becomes  of  age,  and  not  after.^*^ 
A  servant  wrongfully  discharged  may  treat  the  contract  as 
continuing  and  recover  damages  accruing  up  to  the  end  of 
his  term  of  service.  ^^ 

§  536.  Proceedings  Against  Apprentice. — Upon  com- 
plaint being  filed  by  the  master  that  an  apprentice  has,  with- 
out cause,  left  his  service,  the  probate  court  should  cause 
the  same  to  be  inquired  into  by  a  jury  or  otherwise,  and 
make  such  order  or  orders  in  the  premises  as  may  be  just 
and  proper.^^  So,  if  an  apprentice  be  guilty  of  any  gross 
misbehavior,  or  refuse  to  do  his  duty,  or  willfully  neglect 
his  duty,  his  master  may  make  complaint  to  the  probate 
court,  setting  forth  the  circumstances  of  the  case,  to  which 
must  be  attached  a  citation  signed  by  the  clerk  of  the  courts 

»Rev.  St.  1909,  §§  1694.  1695. 

10  Rev.  St.  1909,  §  1696;    Boyce  v.  Christy,  47  Mo.  70. 

11  Ilalsey  v.  Meinrath,  54  Mo.  App.  335. 

12  Rev.  St.  1909,  §  1693. 


§  537  APPRENTICES 


549 


rcciuiring  the  apprentice  and  all  persons  who  have  cove- 
nanted on  his  behalf,  to  appear  and  answer  to  such  com- 
plaint, which  complaint  and  citation  must  be  served  on 
them  in  the  usual  manner  of  serving  civil  process.^* 

Complaint 

State  of  —       ,         I  gg     jjj  jjj^  Probate  Court 

Couuty  of  .  j 

To  the  Probate  Court  of County: 

H.  H.  coniplaiiis  to  the  court,  that  J.  W.,  an  apprentice  duly 
bound,  by  indenture  properly  executed,  to  serve  him,  the  said  H- 
H.,  and  whose  term  of  service  has  not  yet  expired,  has  (here  state 
the  undertaking  of  the  apprentice  and  the  act  or  matter  complained 
of),  without  just  cause;  that  M.  W.,  by  proper  indorsement  on  said 
indenture  of  apprenticeship,  undertook  and  covenanted  on  behalf  of 
the  said  J.  W.,  that  he  should  and  would  perform  and  observe  all 
the  matters  and  things  on  his  part  stipulated  to  be  by  him  per- 
loriiuKl ;  wherefore  complainant  asks  that  citation  be  issued  to  the 
said  J.  W.  and  M.  W.  to  appear  and  answer  to  this  complaint  at 
such  time  as  the  court  may  fix,  and  that  the  matter  herein  com- 
plained against  the  said  J.  W.  be  inquired  into,  and  tliat  such  or- 
ders be  made  in  the  premises  as  shall  relieve  complainant,  and  that 
other  proper  relief  be  granted.  H.  H. 

Subscribed  and  sworn  to,  etc. 

Citation 

The  State  of ,  Jprobate  Court,  Term.  1&-. 

County  of  .    j 

To  J.  W.  and  M.  W.,  of County: 

Whereas,  H.  H.  has  complained,  in  writing,  to  this  court  that  you, 
said  J.  W.,  an  apprentice  duly  bound  by  indenture  to  serve  him.  the 
said  II.  H.,  and  whose  term  of  service  has  not  yet  expired,  has  (here 
states  the  offense  as  set  out  in  the  complaint),  without  just  cause, 
and  tbrtit  you.  M.  W.,  covenanted  by  indorsement  on  said  indenture 
of  apprenticeship  on  behalf  of  said  J.  W.,  that  he  should  perform 
and  observe  all  the  matters  and  things  on  his  part  stipulated  to  be 
by  him  performed  and  observed.  Now,  therefore,  you  said  J.  W. 
and  M.  W.,  and  each  of  you  are  hereby  cited  aud  notified  to  appear 

before  the  judge  of  our  said  probate  court  at  on  the  

day  of  ,  19 — ,  to  answer  to  said  complaint,  a  copy  of  which 

said  complaint,  duly  certified  is  herewith  attached. 

Witness  my  hand  and  the  seal  of  said  probate  court.  Done  at  of- 
fice this  day  of ,  19—.  (Style  of  office.) 

[Seal.]  J.  P . 

§  537.  Duty  of  the  Court  on  the  Hearing. — The  court 
must  hear  and  determine  the  cause,  with  or  without  a  jury, 
and  after  a  full  hearing  of  the  parties,  or  of  the  complainant 

13  Rev.   St.  1909.  §  1697. 


550  APPRENTICES  §  537 

alone,  if  the  adverse  party  does  not  appear  after  due  no- 
tice, the  court  may  render  judgment  or  decree  that  the  mas- 
ter be  discharged  from  the  contract  or  service,  and  for  costs 
of  suit;  such  costs  to  be  recovered  of  the  parent  or  guard- 
ian of  the  minor,  if  he  signed  the  indenture,  and  execution 
to  be  issued  therefor  accordingly ;  and  if  no  parent  or  guard- 
ian be  liable  for  the  costs,  execution  may  be  issued  therefor 
against  the  minor,  or  the  amount  thereof  may  be  recovered  of 
him  after  he  arrives  at  full  age ;  and  the  minor  so  discharged 
may  be  bound  out  anew.^* 

The  parties  to  the  indenture  are  also  liable  to  an  action 
on  the  indenture  for  a  breach  of  covenant  on  their  part 
therein,  committed  before  the  master  was  discharged.  And 
if  an  apprentice  willfully  absent  himself  or  run  away  so,  that 
the  master  be  deprived  of  his  services  the  remainder  of  the 
term,  or  any  part  thereof,  for  which  he  was  bound,  or  violate 
any  stipulation  in  said  indenture,  the  master  may  recover 
such  damages  as  he  has  sustained  thereby,  in  an  action 
against  such  minor,  provided  there  is  no  other  person  liable 
on  such  indenture  therefor.^^ 

§  538.  Proceedings  on  Discharge  of  Apprenticeship. — 
The  death  of  the  master  determines  the  apprenticeship. 
And  when  the  master  or  apprenticeship  is  discharged  from 
any  indenture,  and  any  money  has  been  paid  or  agreed  for 
by  either  party  on  the  execution  of  the  indenture,  the  court 
may  at  the  time  of  granting  such  discharge,  order  such 
money  or  such  part  thereof  as  the  equity  of  the  case  re- 
quires, to  be  refunded,  if  the  same  has  been  paid,  and  if  not 
paid,  the  court  may,  by  order,  discharge  thcj  same  and  direct 
any  securities  given  for  the  payment  thereof  to  be  delivered 
up  or  canceled. ^°  The  court  will  make  such  order  as  seems 
just  and  reasonable. 

§  539.  Enticing  Away  or  Harboring  Apprentice. — If  any 
person  counsel,  persuade,  entice  or  assist  any  apprentice  to 
run  away  or  absent  himself  from  the  service  of  his  master, 
or  to  rebel  against  or  assault  his  master,  he  forfeits  not  less 
than  twenty  nor  more  than  five  hundred  dollars,  to  be  sued 
for  and  recovered  with  costs,  by  the  master,  in  any  court 
having  jurisdiction  thereof.  So,  if  any  person  entertain,  har- 
bor or  conceal  an  apprentice,  knowing  him  to  be  a  run  away 

14  Rev.  St.  1909,  §  1098.        is  Rev.  St.  1909,  §  1701. 

15  Rev.  St.  1909,  §§  1G99,  1700. 


§  541  APPRENTICES  551 

or  to  have  absented  himself  without  leave,  he  forfeits  one 
dollar  a  day  to  the  master,  to  be  sued  for  in  like  manner.^^ 

§  540.  Removal  from  the  State. — It  is  not  lawful  for  any 
master  to  remove  an  apprentice  out  of  the  state.  But  if  a 
master  wishes  to  move  out  of  the  state  or  to  quit  his  trade 
or  business,  he  with  his  apprentice  must  appear  before  the 
probate  court  of  tlie  proper  county,  and  if  the  court  be  satis- 
fied that  the  master  has  done  justice  to  said  apprentice  for 
the  time  he  has  had  him,  it  may  discharge  the  apprentice, 
and  again  bind  him,  if  necessary,  to  some  other  person. ^^ 

§  541.  The  Law  of  this  Chapter  applies  as  well  to  mis- 
tresses, female  guardians,  apprentices  and  wards,  respec- 
tively, as  to  masters,  male  guardians,  apprentices  and  wards. 
And  nothing  in  it  will  prevent  or  afifect  the  right  of  a  fa- 
ther, by  the  common  law,  to  assign  or  contract  for  the  serv- 
ices of  his  children  for  the  term  of  their  minority,  or  any 
part  thereof.^^ 

We  have  not  deemed  it  necessary  to  notice  in  this  chap- 
ter all  the  provisions  of  the  statute  in  relation  to  apprentices, 
but  have  given  enough  to  aid  those  who  have  occasion  to 
refer  to  the  subject  in  the  proper  application  and  execution 
of  its  provisions. 

17  Rev.  St.  1909,  §§  1702,  1703, 

18  Rev.  St.  1909,  §  1704. 

19  Rev.  St.  1909,  §§  1705,  1706. 


552  COLLATERAL  INHERITANCE  TAX  §  542 

CHAPTER  XLVIII 
COLLATERAL  INHERITANCE  TAX 

§  542.  Estates  subject  to  inberitance  tax. 

543.  Tax,  wbeu  due  and  payable. 

544.  By  whom  collected  and  bow  disposed  of. 

545.  Tax  on  remainders,  reversions,  etc. 

546.  Aduiiuistrators  must  retain  tax,  when. 

547.  Proportion  of  tax  repaid  to  legatee. 

548.  Duty  of  executor  wben  real  estate  is  subject  to  tax. 

549.  Probate  court  to  appoint  appraiser. 

550.  Report  of  appraiser. 

551.  Appeal  and  certiorari. 

552.  State  auditor  may  have  reappraisal. 

553.  Appraiser  guilty  of  misdemeanor. 

554.  Jurisdiction  of  probate  court — Appeal. 

555.  State  auditor  to  furnish  books  and  forms. 

556.  Probate  judge  to  make  report. 

557.  Proceedings  to  collect  tax. 

558.  Collector's  receipt,  when  given, 

559.  Fees  of  collector. 

560.  Forms. 

§  542.     Estates  Subject  to  Collateral  Inheritance  Tax. — 

The  state  of  Missouri  imposes  a  tax  on  collateral  inheritances, 
the  proceeds  of  which  are  devoted  to  the  maintenance,  sup- 
port and  better  equipment  of  the  University  of  the  State  of 
Missouri,  until  the  amount  arising  annually  from  the  imposi- 
tion of  this  tax  exceeds  the  equivalent  of  one-tenth  of  one  mill 
upon  every  dollar  of  the  assessed  valuation  of  taxable  prop- 
erty of  Missouri  for  the  said  year,  the  entire  fund  arising 
therefrom  to  be  devoted  to  the  uses  of  the  University,  except 
one-fifth  to  be  applied  to  the  support  of  the  School  of  Mines 
at  RoUa,  a  department  of  the  University.  The  moneys  so 
received  by  the  state  treasurer  as  provided  by  law  are  dis- 
bursed through  regular  appropriations  by  the  general  as- 
sembly to  these  institutions.^  By  statute  it  is  provided  that 
all  property  which  shall  pass  by  will,  or  by  the  intestate 
laws  of  this  state,  from  any  person  who  may  die  seized 
or  possessed  of  the  same  while  a  resident  of  this  state, 
or,  if  decedent  was  not  a  resident  of  this  state  at  the  time  of 

1  Rev.  St.  1909,  §  312. 


g  542  COLLATERAL   INHEUITANCE  TAX  553 

death,  which  property  or  any  part  thereof  shall  be  within  this 
state,  or  any  interest  therein  or  income  therefrom,  which  shall 
be  transferred  by  deed,  grant,  bargain,  sale  or  gift,  made  or 
intended  to  take  efifect  in  possession  or  enjoyment  after  the 
death  of  the  grantor,  bargainor,  vendor  or  donor,  to  any  per- 
son or  persons,  or  to  any  body  politic  or  corporate,  either  di- 
rectly or  in  trust  or  otherwise,  or  by  reason  whereof  any  per- 
son or  body  politic  or  corporate  shall  become  beneficially  en- 
titled in  possession  or  expectancy  to  any  property  or  the  in- 
come thereof,  other  than  to  or  for  the  use  of  the  father,  moth- 
er, husband,  wife,  legally  adopted  children,  or  direct  lineal  de- 
scendant of  the  testator,  intestate,  grantor,  bargainor,  vendor 
or  donor,  except  property  conveyed  for  some  educational, 
charitable  or  religious  purpose  exclusively,  shall  be  and  is  sub- 
ject to  the  payment  of  a  collateral  inheritance  tax  of  five  dol- 
lars for  each  and  every  one  hundred  dollars  of  the  clear  mar- 
ket value  of  such  property,  and  at  and  after  the  same  rate  for 
every  less  amount,  to  be  paid  to  the  collector  of  revenue  of 
the  proper  county.^ 

A  first  lien  is  created  in  favor  of  the  state  against  the  prop- 
erty upon  which  suit  may  be  brought;  the  heirs  or  persons 
receiving  such  property  are  liable  for  such  taxes,  and  the  ad- 
ministrator or  executor  is  personally  liable  for  and  required 
to  pay  the  tax  on  all  personalty  administered  by  him.  The 
taxes  must  be  sued  for  in  five  years  after  they  are  due  and 
legally  demandable,  or  they  will  cease  to  be  a  lien  as  against 
purchasers  of  the  property,  and  the  word  "property"  means 
the  property  or  interest  passing  to  the  grantees,  donees,  heirs 
or  legatees,  and  not  the  property  or  interest  therein  of  the 
testator,  intestate,  grantor,  vendor  or  donor. 

A  succession  tax  is  an  excise  or  duty,  upon  the  right  of  a 
person  or  corporation  to  receive  property  by  devise  or  inher- 
itance from  another  under  the  regulation  of  the  sovereign  pow- 
er of  the  state.  It  is  a  burden  on  each  person  succeeding  to  the 
right  or  interest  mentioned  measured  by  the  value  of  his  in- 
terest and  collectible  out  of  it,  therefore  until  the  estate  be 
transferred  and  vested  there  is  no  basis  for  such  tax.^ 

2  Rev.  St.  1909,  §  309 ;  State  ex  rel.  Fath  v.  Henderson,  160  Mo. 
190,  20  S.  W.  109.3. 

3  State  ex  rel.  Garth  v.  Switzler,  143  Mo.  2S7,  45  S.  W.  245.  40  L. 
R.  A.  280.  65  Am.  St.  Rep.  C5.3 ;  In  re  Roosevelt's  Estate,  143  N.  Y. 
120,  3S  N.  E.  281.  25  L.  R.  A.  695 ;  In  re  Hoffman's  Estate,  143  N.  Y. 
327!  38  N.  E.  311. 


554  COLLATERAL  INHERITANCE  TAX  §  542 

The  tax  must  not  be  based  upon  the  value  of  the  property 
left  by  the  decedent  to  be  paid  by  his  personal  representatives, 
nor  should  the  rate  be  fixed  at  a  per  cent  upon  the  whole 
estate  and  an  additional  per  cent  on  all  the  estate  in  excess  of 
a  given  sum,  but  it  must  be  a  uniform  rate  whether  the  estate 
be  large  or  small.*  Such  a  tax  must  be  for  a  public  purpose 
and  not  for  the  private  benefit  of  a  special  class. ^ 

The  personal  property  of  every  decedent,  resident  of  this 
state  at  the  time  of  his  death,  which  follows  the  course  of 
devolution  named  in  the  statute,  regardless  of  whether  or  not 
it  is  located  within  this  state  or  in  another  state  or  country, 
is  subject  to  the  tax.°  This  is  true  because  the  personal  prop- 
erty of  a  decedent  transmitted  by  will  or  by  the  laws  of  de- 
scent and  distribution  is  controlled,  as  to  its  distribution,  by 
the  law  of  the  domicile  of  the  deceased  owner.  The  situs  of 
personal  property  for  the  purpose  of  administration  is  the 
domicile  of  the  deceased.  Statutes  identical  with  that  of  Mis- 
souri have  been  held  to  subject  to  the  tax  personal  property 
of  the  decedent,  resident  of  the  state  at  the  time  of  his  death, 
where  that  property  was  located  outside  of  the  state  imposing 
the  tax.''  Real  estate  belonging  to  a  person  who  at  the  time  of 
his  demise  was  domiciled  in  this  state,  but  which  is  located 
in  another  state  or  country,  is  not  subject  to  the  tax.  When 
construed  together,  the  phrases  of  the  statute,  which  prescribe 
the  property  upon  which  it  is  imposed,  cover  only  such  prop- 
erty as  is  governed  as  to  its  devolution  by  the  intestate  laws 
or  the  statute  of  wills  of  Missouri.  As  the  lex  rei  sitae  tests 
the  validity  of  a  will  conveying  real  estate  or  prescribes  the 
manner  of  its  devolution  in  the  case  of  intestacy,  real  estate  lo- 
cated outside  of  Missouri  is  not  property  which  passes  by  will 
or  by  the  intestate  laws  of  this  state  on  death  of  the  owner. 
The  statute  in  Missouri  in  those  provisions  concerning  the 

4  state  ex  rel.  Garth  v.  Switzler,  143  Mo.  287,  45  S.  W.  245,  40  L. 
R.  A.  280,  65  Am.  St.  Rep.  65.3. 

5  Simmons  Medicine  Co.  v.  Ziegenbein,  145  Mo.  368,  47  S.  W.  10 ; 
State  ex  rel.  Garth  v.  Switzler,  143  Mo.  287,  45  S.  W.  245,  40  L.  R. 
A.  2S0,  65  Am.  St.  Rep.  653. 

c  In  re  Riesenberg's  Estate,  116  Mo.  App.  308,  90  S.  W.  1170;  Fi- 
delity &  Deposit  Co.  V.  Crenshaw,  120  Tenn.  loc.  cit.  614,  110  S.  W. 
1017;  In  re  Hartman's  Estate,  70  N.  J.  Eq.  loc.  cit.  667,  62  Atl.  560; 
22  Am.  &  Eng.  Encyc.  1355,  and  cases  cited. 

7  In  re  Dingman's  Estate,  66  App.  Div.  228,  72  N.  Y.  Supp.  694; 
Mann  v.  Carter,  74  N.  II.  loc.  cit.  347,  68  Atl.  130,  15  L.  R.  A.  (N. 
S.)  150 ;   Appeal  of  Gallup,  76  Conn.  617,  57  Atl.  699. 


§  544  COLLATEKAL   IMIEKITANCE   TAX  555 

property  affected  is  identical  with  the  statute  in  Illinois,  and 
in  that  state  the  construction  above  indicated  has  been  made 
in  a  well-considered  case.**  Property  located  in  this  state  of 
a  decedent  who  was  not  a  resident  of  Missouri  at  the  time  of 
his  death,  whether  personalty  or  real  estate,  and  which  goes 
on  his  death  to  the  collateral  heirs  named  in  the  statute,  is 
subject  to  the  tax." 

§  543.  Tax,  When  Due  and  Payable. — Except  as  other- 
wise provided  such  taxes  are  due  and  payable  at  the  death  of 
the  person  rendering  such  property  subject  to  such  taxation, 
and  interest  at  the  rate  allowed  for  delinquent  taxes  will  be 
charged  for  such  time  as  such  taxes  are  not  paid ;  but  if  the 
taxes  are  paid  within  one  year  no  interest  will  be  charged,  and 
if  paid  within  six  months  a  discount  of  five  per  cent  will  be 
allowed  and  deducted.  If  by  reason  of  necessary  litigation 
or  unavoidable  delay  the  estate  or  any  part  thereof  cannot  be 
settled  at  the  end  of  the  year  from  the  death  of  the  decedent, 
the  probate  court,  or  judge  in  vacation,  may  extend  the  time 
for  the  payment  of  such  taxes  not  exceeding  one  year  at  a 
time,  in  which  case  only  six  per  cent  will  be  charged  from  the 
death  of  the  decedent  until  the  expiration  of  said  time,  after 
which  the  rate  charged  will  be  the  same  as  that  charged  on 
delinquent  taxes.  In  all  such  cases  taxes  on  real  estate  will  re- 
main a  lien  thereon  until  paid,  and  the  executors,  administra- 
tors or  trustee  must  give  a  bond  to  the  people  of  the  state  of 
Missouri,  in  a  penalty  of  three  times  the  amount  of  the  tax, 
with  such  sureties  as  the  probate  judge  may  approve,  condi- 
tioned for  the  payment  of  said  tax  and  interest  at  the  expira- 
tion of  the  period  for  wdiich  payment  was  extended,  which 
bond  must  be  filed  in  the  office  of  the  probate  judge. ^^ 

§  544.  By  Whom  Collected  and  How  Disposed  Of.— On 
or  before  the  15th  day  of  each  month  the  collector  must  pay 
to  the  state  treasurer  all  taxes  received  by  him  under  this  law 
before  the  1st  day  of  the  month,  deducting  his  commission 
and  disbursements  made  upon  the  certificate  of  the  probate 
judge,  and  he  must  report  the  collections  and  payments  to  the 
state  auditor  on  or  before  the  5th  day  of  each  month,  stating 
for  what  estate  paid,  in  such  form  and  manner  as  the  state 


8  Connell  v.  Crosby,  210  III.  loc.  cit.  387,  71  N.  E.  ,^->0;    In  re  Swift, 
i37  N.  Y.  loc.  cit.  SS,  32  X.  E.  1096,  18  L.  R.  A.  709. 

9  Rev.  St.  1909,  §  309.  lo  Rev.  St.  1909,  §  310. 


556  COLLATERAL  INHERITANCE  TAX  §  545 

auditor  may  prescribe.  If  he  fails  to  make  such  monthly  pay- 
ments he  is  subject  to  a  penalty.  The  moneys  so  received  by 
the  st2Lte  treasurer  will  be  deposited  to  the  credit  of  the  "state 
seminary  moneys"  for  the  benefit  of  the  State  University  to  an 
amount  not  exceeding  one-tenth  of  one  mill  upon  every  dollar 
of  the  whole  assessed  valuation  of  taxable  property  of  the 
state  for  the  year,  and  one-fifth  of  such  moneys  so  received 
(on  account  of  the  University)  must  be  devoted  to  the  School 
of  Alines  and  Aletallurgy.  But  if  the  amount  so  deposited  in 
any  one  year  be  not  equivalent  to  said  one-tenth  of  one  mill, 
the  state  treasurer  must  make  good  the  deficiency  out  of  the 
first  moneys  received  from  such  source  in  the  next  succeeding 
year.  These  moneys  must  be  disbursed  by  regular  appropria- 
tions by  the  general  assembly.  The  moneys  so  received  in 
excess  of  the  amount  required  to  be  placed  to  the  credit  of 
the  state  seminary  fund,  if  any,  must  be  deposited  to  the  cred- 
it of  a  fund  to  be  known  as  the  "educational  funds"  to  be  ap- 
propriated by  the  general  assembly  for  public  educational  pur- 
poses.^^ 

§  545.  Tax  on  Remainders,  Reversions,  etc. — If  the  right 
or  interest  upon  which  the  tax  is  imposed  be  a  remainder,  re- 
version or  other  expectancy,  in  real  or  personal  estate,  the  tax 
is  not  payable,  and  interest  will  not  begin  to  run  thereon  until 
the  person  liable  therefor  comes  into  possession  of  the  estate, 
by  the  termination  of  the  estate  for  life  or  years,  and  the  tax 
will  be  assessed  upon  the  value  of  the  estate  at  the  time  the 
right  of  possession  accrues  to  the  owner.  Such  tax  on  real 
estate  will  remain  a  lien  thereon  until  paid.  The  person  or 
parties  interested  in  the  property  must  make  a  full,  verified 
return  of  said  property  to  the  probate  judge  and  file  it  in  his 
office  within  one  year  from  the  death  of  the  decedent,  and 
within  that  time  give  a  bond  for  the  payment  of  said  tax  when 
the  right  of  possession  shall  accrue  to  the  owner,  and  in  case 
of  failure  to  do  so  the  tax  will  be  immediately  payable  and  col- 
lectible on  the  clear  market  value  of  the  estate.  The  owner 
may  pay  the  tax  at  any  time  on  the  value  of  the  estate  at  the 
time  of  the  payment  of  the  tax  after  deducting  the  value  of 
the  life  estate  or  estate  for  years. 

If  property  liable  to  said  tax  be  devised  or  bequeathed  to 
executors  or  trustees  in  lieu  of  their  commission  or  allowances, 

11  Rev.  St.  1909,  §§  311,  312;  State  ex  rel.  Garth  v.  Switzler,  143 
Mo.  287,  45  S.  W.  245,  40  L.  R.  A.  280,  Go  Am.  St.  Rep.  653. 


§  546  COLLATERAL  INHERITANCE  TAX  557 

or  if  they  be  residuary  legatees,  and  said  devises,  bequests,  or 
residuary  legacies  exceed  a  fair  compensation  for  their  serv- 
ices to  be  fixed  by  the  probate  court,  such  excess  will  be  sub- 
ject to  the  payment  of  such  tax.^- 

§  546.  Administrators,  etc.,  must  Retain  the  Tax  When, 
etc. — Their  Duties  in  Relation  Thereto,  etc. — The  adminis- 
trator, executor  or  trustee  having  any  legacy  or  property  for 
distribution,  subject  to  said  tax,  must  deduct  the  tax  therefrom, 
or  if  it  be  not  money  he  must  demand  payment  of  the  tax  there- 
on upon  the  appraised  value  thereof  from  the  person  entitled  to 
such  property,  and  he  must  not  deliver  or  be  compelled  to  deliver 
the  same  until  he  has  collected  the  tax,  and  if  the  tax  be  not  paid 
the  specific  legacy  or  property  or  so  much  thereof  as  may  be 
necessary  must  be  sold  by  the  administrator,  executor  or  trus- 
tee at  jniblic  sale  after  notice  to  such  legatee  or  person  to 
whom  it  belongs,  and  the  balance  after  deducting  the  amount 
of  the  tax  must  be  distributed  as  directed  by  law,  and  when 
the  legacy  or  property  shall  be  charged  upon  or  payable  out 
of  real  estate  the  heir  or  devisee  before  paying  the  same  must 
deduct  the  amount  of  the  tax  therefrom  and  pay  it  to  the  ex- 
ecutor or  trustee,  and  the  tax  will  remain  a  charge  on  such 
real  estate  until  paid,  and  the  payment  thereof  may  be  enforced 
by  the  executor  or  other  trustee  in  the  same  manner  that  the 
payment  of  such  legacy  or  property  might  be  enforced  by  the 
prosecuting  attorney  of  the  county.  If  the  legacy  or  property 
subject  to  the  tax  be  given  in  money  to  any  person  for  a  lim- 
ited period,  the  executor  or  trustee  must  retain  the  tax  upon 
the  whole  amount,  but  if  it  be  not  in  money  he  must  make  ap- 
plication to  the  court  in  which  he  must  account,  to  make  an 
apportionment,  if  the  case  requires  it,  of  the  sum  to  be  paid 
to  him  by  such  legatee  or  other  person,  and  for  such  further 
action  as  the  case  may  require. 

The  executor  or  other  trustee  must,  within  thirty  days  after 
receiving  such  tax,  pay  the  same  over  to  the  collector  of  the 
county,  taking  duplicate  receipt  from  him  therefor,  one  of 
which  shall  be  immediately  sent  to  the  state  treasurer,  who  will 
charge  the  collector  with  the  amount  thereof,  and  seal  said 
receipt  with  the  seal  of  his  ofifice  and  countersign  the  same  and 
return  it  to  the  executor,  and  it  will  be  a  proper  voucher  in 
the  settlement  of  his  accounts,  and  he  will  not  be  entitled  to 

12  Rev.  St.  1909,  §§  314,  315. 


558  COLLATERAL  INHERITANCE  TAX  §  547 

credit  therefor  unless  he  produces  such  receipt  from  the  state 
treasurer  or  a  copy  thereof  certified  by  him/^ 

§  547.  Proportion  of  Tax  Repaid  to  Legatee. — When- 
ever debts  shall  be  proven  against  an  estate  after  the  payment 
of  legacies  or  the  distribution  of  property  upon  which  a  tax  has 
been  paid  and  a  refund  has  been  made  on  account  thereof,  a 
proportion  of  the  tax  so  paid  must  be  repaid  to  the  legatee, 
heir  or  person  entitled  thereto  by  the  executor  or  by  the  coun- 
ty collector  if  the  tax  has  been  paid  over  to  him;  such  payment 
by  a  collector  to  be  made  upon  the  order  of  the  probate  judge 
out  of  any  money  in  his  possession  received  on  account  of  such 
taxes,  and  the  state  auditor  will  credit  the  collector  with  the 
amount  so  paid  upon  the  order  of  the  probate  judge. ^* 

§  548.  Duty  of  Executor  When  Real  Estate  of  Decedent 
is  Subject  to  Tax,  etc. — When  the  real  estate  of  the  deceased 
is  subject  to  this  tax,  the  executor  or  other  trustee  must  give 
information  thereof  in  writing  to  the  judge  of  the  probate 
court  within  six  months  after  entering  upon  his  duties,  or  if 
the  fact  be  not  known  to  him  within  that  period,  within  one 
month  after  the  fact  comes  to  his  knowledge,  and  the  owners 
of  such  estate  must  immediately  after  the  vesting  of  the  estate 
give  information  thereof  in  writing  to  said  probate  judge. ^^ 

§  549.     Probate  Court  to  Appoint  Appraisers,  etc. — The 

probate  judge  upon  the  application  of  any  person  interested, 
county  collector,  or  of  his  own  motion  must  when  and  as  often 
as  occasion  requires  appoint  a  competent  person  to  appraise  or 
to  fix  the  valuation  of  estates  subject  to  the  payment  of  this 
tax.  Such  appraiser  must  forthwith  give  notice  by  mail  to 
all  persons  known  to  be  interested  in  the  property,  the  county 
collector  and  such  persons  as  the  probate  judge  may  by  order 
direct,  of  the  time  and  place  when  he  will  appraise  such  estate 
or  property,  and  he  must  at  such  time  and  place  appraise  the 
same  at  its  clear  market  value  at  the  time  of  the  death  of  the 
deceased,  excluding  an  amount  equal  to  all  the  lawful  debts 
of  the  deceased,  and  for  that  purpose  he  may  issue  subpoenas 
and  compel  the  attendance  of  witnesses  and  take  their  evidence 
under  oath  concerning  such  property  and  the  value  thereof, 
and  he  must  report  in  writing  to  the  probate  judge  the  value 

13  Rev.  St.  11)09,  §§  316,  317,  318. 

14  Rev.  St.  1009,  §  319. 
le  Rev.  St.  1909,  §  320. 


§  551  COLLATERAL   INHERITANCE  TAX  659 

of  tile  property,  together  with  tlie  depositions  of  the  witnesses 
examined  and  such  other  facts  in  relation  thereto  as  said  judge 
may  order  or  require.  The  appraiser  must  be  paid  on  the  cer- 
tificate of  the  probate  judge  at  the  rate  of  three  dollars  per 
day  for  every  day  actually  and  necessarily  employed,  and  his 
actual  and  necessary  traveling  expenses  and  the  fees  paid  the 
witnesses,  which  are  the  same  as  are  paid  witnesses  in  courts 
of  record,  by  the  county  collector  out  of  any  funds  he  may 
have  on  account  of  any  such  tax.^** 

§  550.  The  report  of  the  appraiser  must  be  filed  in  the 
office  of  the  probate  judge,  from  which  and  other  proof  re- 
lating to  the  estate  he  must  forthwith  assess  and  fix  the 
cash  value  of  the  estate  and  the  amount  of  tax  for  which 
it  is  liable,  or  the  judge  may  determine  the  cash  value  of 
the  estate  and  the  amount  of  the  tax  without  appointing 
an  appraiser.  The  value  of  a  limited  estate,  income,  inter- 
est or  annuity  dependent  upon  life  or  lives  in  being  must 
be  determined  by  the  rule,  method  and  standard  of  mortal- 
ity and  value  employed  by  the  superintendent  of  the  insur- 
ance department  in  ascertaining  the  value  of  policies  of  life 
insurance  and  annuities,  save  that  the  rate  of  interest  for 
computing  the  value  of  such  estates  or  interest  shall  be 
five  per  centum  per  annum ;  and  said  superintendent  on 
application  of  the  probate  judge,  wull  determine  the  value 
of  such  limited  estates  or  interest  upon  the  facts  contained 
in  such  report,  and  certify  the  same  to  the  probate  judge, 
and  his  certificate  will  be  conclusive  evidence  that  the 
method  of  computation  adopted  therein  is  correct.^'' 

§  551.  Appeal  and  Certiorari. — Any  person  dissatisfied 
with  the  appraisement  and  determination  of  tax  may  ap- 
peal therefrom  to  the  probate  judge  wnthin  sixty  days  from 
the  fixing  and  determination  of  the  tax  by  the  probate 
judge  as  herein  provided,  by  filing  in  the  office  of  the  pro- 
bate judge  a  written  notice  of  the  appeal,  stating  the 
grounds  upon  which  the  appeal  is  taken  and  on  pa3nng  or 
giving  security,  approved  by  said  judge,  to  pay  all  costs  of 
the  proceeding. 

Upon  the  determination  by  him  as  to  the  value  of  any 
estate  and  of  the  tax  to  which  it  is  liable,  the  probate  judge 

16  Rev.  St.  1909.  §  322. 

17  liev.  St.  1909,  §  323. 


560  COLLATERAL  INHERITANCE  TAX  §  551 

must  immediately  give  notice  to  all  persons  known  to  be 
interested  therein.^* 

The  statute  in  relation  to  the  right  of  appeal  from  the 
decision  or  judgment  of  the  probate  judge  or  court  is  some- 
what ambiguous,  but  it  is  said  that  the  spirit  of  our  stat- 
utes is  to  allow  appeals  from  all  final  judgments  of  courts, 
whether  such  courts  are  of  limited  or  general  jurisdiction.^® 

The  writ  of  certiorari  was  used  by  the  Supreme  Court  to 
remove  a  case,  arising  under  the  former  law  authorizing 
the  collection  of  a  succession  or  inheritance  tax,  from  the 
probate  court  to  the  Supreme  Court,  and  the  whole  proceed- 
ings of  the  probate  court  were  fully  reviewed  and  set  aside 
or  quashed  for  the  reason  that  the  law  was  held  to  be  un- 
constitutional in  that  it  authorized  the  tax  so  collected  to 
be  applied  to  the  private  purpose  of  educating  a  class  of 
students,  and  not  to  a  public  purpose.^'' 

The  present  law  removes  that  objection,  and  has  been 
held  to  be  constitutional  by  the  higher  court. 

§  552,  State  Auditor  may  have  Reappraisal,  When. — 
Within  two  years  after  the  entry  of  an  order  or  decree  o^. 
the  probate  judge  determining  the  value  of  an  estate  and 
assessing  the  tax  thereon,  the  state  auditor  may,  if  he  be- 
lieves it  was  fraudulent,  collusively  or  erroneously  made, 
make  application  to  the  judge  of  the  circuit  in  which  the 
former  owner  of  such  estate  resided  for  a  reappraisal  there- 
of, and  such  judge  may  appoint  a  competent  person  to  re- 
appraise such  estate,  who  will  possess  the  powers  and  be 
entitled  to  the  same  compensation  as  appraisers  appointed 
by  the  probate  judge,  payable  by  the  county  collector  out 
of  funds  received  on  account  of  any  such  tax  upon  the  cer- 
tificate of  the  judge  appointing  him. 

The  report  of  such  appraiser  must  be  filed  with  said  cir- 
cuit judge,  and  thereafter  the  same  proceedings  may  be 
had  by  and  before  such  judge  as  before  the  judge  of  the 
probate  court  in  other  cases.  The  determination  and  as- 
sessment of  the  circuit  judge  will  supersede  the  determina- 
tion of  the  probate  judge  in  the  case  and  must  be  filed  in 
the  of^ce  of  the  state  auditor.^^ 

18  Rev.  St.  1909,  §  32.3. 

18  Coleman  v.  Farrar,  112  Mo.  54,  20  S.  W.  441. 

20  State  ex  rel.  Garth  v.  Svvitzler,  143  Mo.  287,  45  S.  W.  245,  40  L. 
R,  A.  2S0,  65  Am.  St.  Rep.  653. 

21  Rev.   St.  1909,  §  324. 


§  555  COLLATKRAL   INHERITANCE  TAX  501 

§  553.  Appraiser  Guilty  of  Misdemeanor. — If  any  ap- 
praiser take  any  fee  or  reward  from  any  executor  or  other 
person  interested  or  liable  to  pay  said  tax  or  any  portion 
thereof,  he  is  guilty  of  a  misdemeanor  and  liable  to  punish- 
ment, and  may  be  dismissed  from  such  service  and  be  dis- 
qualified from  serving-  thereafter  as  an  appraiser. " 

§  554.  Jurisdiction  of  Probate  Court  or  Judge — Appeal. 
— The  probate  court  having  cither  the  principal  or  auxilia- 
ry jurisdiction  of  the  settlement  of  the  estate  of  a  dece- 
dent, may  hear  and  determine  all  questions  in  relation  to 
this  tax  that  may  arise  affecting  any  devise,  legacy  or  inheri- 
tance, subject  to  appeal  as  in  other  cases,  and  the  prosecut- 
ing attorney  must  represent  the  interests  of  the  state  in 
any  such  proceedings,  except  in  case  of  appeal  to  the  court 
of  appeals  or  supreme  court  the  attorney  general  must  rep- 
resent the  interest  of  the  state.-* 

§  555.  State  Auditor  to  Furnish  Books,  Forms,  etc. — 
The  state  auditor  must  furnish  the  probate  judge  a  book 
or  public  record  in  which  he  must  enter  with  particularity 
«nd  in  detail  almost  everything  done  or  known  in  relation 
to  the  estates  of  deceased  persons,  the  date  and  place  of 
death  of  decedent,  and  the  estimated  value  of  the  property, 
real  and  personal,  the  names,  residence  and  relationship  of 
his  heirs  at  law,  the  names  and  residence  of  the  legatees 
and  devisees  in  the  will,  the  amount  of  each  legacy  and  es- 
timated value  of  real  property,  devised  and  to  whom. 
These  entries  to  be  made  from  data  contained  in  the  pa- 
pers filed  on  application  for  letters,  or  any  proceeding  re- 
lating to  the  estate  of  the  decedent.  He  must  also  enter 
in  the  book  the  amount  of  personal  property  shown  by  the 
inventory  when  filed,  and  the  returns  made  by  any  apprais- 
er appointed  by  him  under  this  law,  the  value  of  annuities, 
life  estate,  terms  of  years  and  other  property  of  the  dece- 
dent or  given  by  him  in  his  will  or  otherwise  as  fixed  by 
the  probate  judge  and  the  tax  assessed  thereon,  and  the 
amount  of  receipts  for  the  payment  of  any  tax  on  the  es- 
tate filed  with  him.  The  state  auditor  must  furnish  the 
probate  judge  forms  for  reports  to  be  made  by  him  corre- 
sponding with  the  entries  to  be  made  in  such  book.-* 

2  2  Rev.  St.  190!).  §  325.  2*  Rev.  St.  1909,  §  327. 

2  3  Rev.  St.  1909,  §  326. 
Kel.Mo.P.G.— 3G 


562  COLLATERAL   INHERITANCE  TAX  §  556 

§  556.  Probate  Judge  to  Make  Report. — On  the  first  of 
January,  April,  July  and  October  of  each  year,  the  probate 
judge  must  make  a  report  in  duplicate  upon  the  forms  fur- 
nished by  the  state  auditor,  containing  all  the  data  and 
matters  required  to  be  entered  in  said  book,  one  to  be  im- 
mediately delivered  to  the  county  collector  and  the  other 
transmitted  to  the  state  auditor. 

The  recorder  of  the  county  must  at  the  same  time  make 
reports  in  duplicate,  containing  a  statement  of  any  or  other 
conveyance  tiled  or  recorded  in  his  office  of  any  property 
which  appears  to  have  been  made  or  intended  to  take  ef- 
fect in  possession  or  enjoyment  after  the  death  of  the  gran- 
tor or  vendor,  the  name  and  place  of  residence  of  the  par- 
ties, grantor  and  grantee,  and  a  description  of  the  property, 
one  of  which  duplicate  reports  must  be  immediately  deliv- 
ered to  the  county  collector  and  the  other  transmitted  to 
the  state  auditor.-^ 

§  557.  Proceedings  to  Collect  Tax. — If  the  county  col- 
lector has  reason  to  believe  that  any  such  tax  is  due  and 
unpaid  he  must  notify  the  prosecuting  attorney  in  writing^ 
who,  if  he  has  probable  cause  to  believe  that  such  tax  is 
due  and  unpaid,  will  apply  to  the  probate  court  for  a  cita- 
tion requiring  the  person  liable  to  pay  such  tax  to  appear 
before  the  court  on  the  day  specified,  not  more  than  three 
months  after  the  date  of  the  citation,  and  show  cause  why 
the  tax  should  not  be  paid,  and  if  the  facts  are  shown  to  be 
true  the  judge  must  issue  such  citation.  The  service  of  the 
citation  and  the  hearing  and  determination  thereon  and  the 
enforcement  of  the  decision  and  decree  made  by  the  judge 
and  the  fees  and  costs  will  be  the  same  as  in  other  cases  in 
the  probate  court,  and  the  judge  must  allow  as  costs  in  the 
case  such  fees  to  the  prosecuting  attorney  as  he  may  deem 
reasonable.  If  the  probate  judge  certify  that  there  was 
probable  cause  for  his  issuing  the  citation  and  taking  the 
proceedings  thereon  the  state  auditor  will  credit  the  coun- 
ty collector  with  all  expenses  incurred  in  relation  to  the 
case.  In  proceedings  against  the  county  collector  the  state 
auditor  may  in  his  discretion  designate  and  retain  counsel 
to  represent  the  collector  and  direct  him  to  pay  the  expens- 
es out  of  the  funds  in  his  hands  on  account  of  the  tax.-® 

2  5  Rev.   St.  190n,  §  .328. 
2  6  Rev.  St.  190'J,  §  329. 


§  560  COLLATERAL  INHERITANCE  TAX  563 

§  558.  Collector's  Receipt,  When  Given.— Upon  the 
payment  of  twenty-five  cents  any  person  will  be  entitled  to 
a  receipt  from  the  county  collector,  or  at  his  option,  a  copy 
of  a  receipt  given  by  the  collector  for  the  payment  of  such 
tax  under  the  seal  of  the  collector,  designating  on  what 
real  property,  if  any,  of  which  decedent  died  seized  said 
tax  has  been  paid  and  by  whom  and  whether  in  full  of  said 
tax,  which  receipt  may  be  recorded  in  the  recorder's  office 
in  a  book  kept  for  that  purpose,  labeled  "inheritance 
tax."  -' 

§  559.  Fees  of  Collector. — The  collector  will  be  allow- 
ed to  retain  on  all  taxes  paid  and  accounted  for  by  him 
each  3'ear,  in  addition  to  his  salary  or  fees  allowed  for  oth- 
er services,  five  per  centum  on  the  first  $20,000,  and  three 
per  centum  on  all  additional  sums,  but  he  must  every  three 
months  pay  one-fifth  of  all  such  sums  so  retained  by  him, 
during  such  period,  to  the  probate  judge  for  the  use  of  the 
judge  and  to  defray  the  clerical  expenses  incurred  in  con- 
*  nection  with  the  proceedings  in  his  office  under  this  law.-** 

§  560.  Forms  of  the  Principal  Entries  and  Documents 
for  Use  in  Connection  with  the  Collateral  Inheritance  Tax. 
—Editor's  Note.— The  forms  here  published  were  prepar- 
ed by  John  A.  Kurtz,  of  the  Kansas  City  Bar,  and  F.  C. 
Donnell,  of  the  St.  Louis  Bar,  acting  on  the  suggestion  of 
the  Board  of  Curators  of  the  University  of  Missouri. 

porm  I. — Petition  and  Order  for  Appointment  of  an 
Appraiser 

In  the  Probate  Court  within  and  for  the  County  of  ,  State  ol 

Missouri.  Term,  li)— . 

Estate  of  ,  Deceased.  I  In  the  Matter   of   the  Assessment   of 

J       Collateral  Inheritance  Tax. 

No.  . 

To  the  Hon. ,  Probate  Judge: 

The  petition  of (any  interested  party,  including  county  col- 
lector) respectfully  shows: 

First.  That  your  petitioner  is  informed  and  believes  that  the  prop- 
erty of  the  said  deceased,  or  some  portion  thereof,  or  some  interest 

27  Rev.  St.  1909,  §  3^0. 

28  Rev.  St.  1909,  §  331. 


564  COLLATERAL  INHERITANCE  TAX  §  560 

therein,  is,  or  may  be  subject  to  the  payment  of  the  tax  imposed  by 
article  xiv,  c.  2.  Revised  Statutes  of  Missouri,  1909;  that  your  peti- 
tioner is  an  interested  party  and  malces  this  application  under  sec- 
tion 322  of  said  law. 

Second.  That  the  said  decedent  departed  this  life  on  or  about  the 

day  of ,  19 — ,  at ,  and  was  a  resident  of ; 

that  letters on  the  estate  of  said  deceased  were,  on  the 

day  of  ,  19 — ,  issued  to  ,  whose  post-office  address  is 

,  Missouri. 

Third.  That  the  persons  interested  in  said  estate,  and  entitled  to 
notice  herein  and  their  post-office  addresses,  so  far  as  this  petitioner 
can  ascertain  are  as  follows: 

The  collector  of  the  revenue  of County. 

Street.  City. 

who  resides  at   state  of 

who  resides  at   state  of 

who  resides  at   state  of 

Wherefore  your  petitioner  prays  that  you  will  appoint  some  com- 
petent person  as  appraiser,  as  provided  by  section  322  of  said  law. 

Petitioner. 

Dated ,  19—. 

On  reading  and  filing  the  above  petition  praying  for  the  appoint- 
ment of  some  competent  person  as  appraiser  in  the  above  entitled 
matter,  it  is 

Ordered,  that be,  and  he  is  hereby  appointed  such  appraiser. 

» 
Probate  Judge. 


Form  11. — Notice  bv  Appraiser  to  Persons  Designated  in  Sec- 
tion 32^,  R.  S.  Missouri,  1909 

State  of  Missouri,     ]  ^^ 

County  of  .  \ 

In  the  Probate  Court  in  and  for  the  County  of ,  Missouri: 

In  the  Matter  of  the  Estate  of  )  ^^   ^ 

,  Deceased.  J 

To : 

You  are  hereby  notified  that  the  undersigned    was  on  the  

day   of   ,   19—,   by   the   judge   of  the   probate  court,   county 

of   ,   Missouri,   having  jurisdiction    of   said   estate,    appointed 

appraiser  to  fix  the  valuation  of  the  estate  of  the  above  named  de- 
cedent, or  of  so  much  thereof  as  is  subject  to  the  payment  of  the  tax 
on  collateral  inheritances,  imposed  by  sections  309-331,  inclusive, 
Revised   Statutes  of  Missouri,  1909;    and  you  are  further  notified 

that  the  undersigned  will,  at  his  office  at ,  in  the  city  of , 

county  of  ,  State  of  Missouri,  on  the day*  of  , 

•A  reasonable  time  should  be  allowed.  It  is  generally  advisable  to  set  a  date 
not  less  than  ten  days  after  the  date  of  this  notice,  especially  where  some  of 
the  parties  notified  are  beyond  the  state. 


§  5G0  COLLATEUAL   IMIIOUITANCE   TAX  565 

19 — ,   coniiiienciiig  at   o'clock   in   the  noon,   appraise 

such  estate  or  property  for  the  purpose  aforesaid,  when  and  where 

you  may  attend  if  you  so  desire.  . 

Appraiser. 
,  Mo.  ,  19—. 


Form   III. — Report  of  Appraiser 

In  tlie  Probate  Court,  County  of ,  State  of  Missouri. 

In  the  Matter  of  the  Assessment"! 

for  Collateral  Inheritance  Tax  K. Term,  19 — . 

Estate  of ,  Deceased.       J      No.  . 

To  the  Hon. ,  Probate  Judge: 

The  undersigned  having  been  on  the  day  of  ,  19 — , 

by  order  of  the  judge  of  this  court,  duly  appointed  appraiser,  to  fix 
the  valuation  of  the  estate  of  the  above  named  decedent,  subject  to 
the  payment  of  the  tax,  imposed  by  sections  309-'i.31,  inclusive.  Re- 
vised Statutes  of  Missouri,  1909,  respectfully  presenting  this  his 
report  in  writing,  together  with  the  depositions  of  all  witnesses  ex- 
amined and  such  other  facts  in  relation  thereto,  and  to  the  said 
matter,  as  the  judge  of  this  court  has  heretofore'  ordered  or  required, 
rejiorts  as  follows,  to-wit: 

That  he  did  on  the  day  of ,  19 — ■,  at  o'clock, 

in  the  noon,  at  his  office  at  ,  in  the  city  of  , 

county  of ,  Missouri,  proceed  to  fix  such  valuation,  first  hav- 
ing given  at  least  days  notice  by  mail  to  all  persons  known 

to  have  a  claim  or  interest  in  the  property  of  the  above  estate  to  be 
appraised,  including  the  collector  of  the  revenue  for  the  county  of 

,  and  such  other  persons  as  the  judge  of  this  court  did  by 

order  direct,  said  notice  setting  forth  the  time  when,  and  the  place 
where  lie  would  appraise  such  estate  and  property. 

That  at  said  time  and  place  the  following  persons  in  interest  were 
in  attendance,  to-wit: 


Whereupon,  he  did  at  said  last  named  time  and  place  appraise  the 
same  as  follows: 

Gross  market  value  at  the  time  of  the  death  of  decedent,  of  estate 
subject  to  the  payment  of  said  tax,  consisting  of 

1.  Cash   (including  bank  deposits  in  Mis- 

souri or  elsewhere) $ 

2.  Bonds   and    mortgages 

3.  Stocks  and  other  securities 

4.  Notes  and  open  accounts 

5.  Insurance    policies    and    benefit    certifi- 

cates     

6.  Household    effects 

7.  All  other  personal  property 

S.  Real    estate 

Is    $ 


566  COLLATERAL   INHERITANCE   TAX  §  560 

Amount  equivalent  to  the  sum  of  all  the 
lawful  debts  of  decedent,  so  tar  as 
known     

General  and  special  taxes  due,  or  to  be- 
come due  to  the  State,  county  or  mu- 
nicipality     

All  necessary  expenses  of  administration*       ? 

Leaving    the   clear    market    value   at    the 

time  of  the  death  of  the  decedent..  $ 

Subject  to  distribution  as  follows:        Relation    to  Value  of  in-  Value  of  in- 

deceased,  terestin  terestin 

Personalty.  Real  Estate. 

To  $ ? •? 


$ $. 


The  undersigned  further  reports  that  all  of  the  above  named 
property  was,  at  the  death  of  said  decedent,  situated  in  the  county 
of ,  state  of  Missouri,  except  the  following: 


That  the  following  facts  appear  in  connection  with  said  appraise- 
ment and  are  submitted  to  the  court  for  its  consideration: 


Appraiser, 


Dated  at  ,  Mo.,  day  of ,  19- 


♦Ivlote.— This  item  does  not  include  improvements  made  on  property  after 
death  of  decedent,  commissions  of  trustee,  or  anything  not  strictly  legitimate 
expenses  of  administration,  and  allowed  by  the  probate  court  as  such. 

I>jote.— It  is  important  that  an  itemized  list  of  all  tracts  of  real  estate  re- 
ferred to  in  summary  in  this  report  be  filed  herewith  and  attached  hereto,  set- 
ting forth  specifically  for  each  tract  of  land  the  value  thereof  determined  by 
the  appraiser. 


Form  IV. — Affidavit  of  Appraiser  as  to  Fees  and 
Disbursements 

In  the  Probate  Court. 

State  of  Missouri,      ) Term,  19 . 

County  of  .  \ 

In  the  Matter  of  the  As.sessraent  1 

for  Collateral  Inheritance  Tax  V  No.  . 

on  Estate  of ,  Deceased.  J 

State  of  Missouri,     ]  ^^ 

County  of 


a  competent  person  appointed  by  the  judge  of  the  probate 

court,  county  of ,  on  the day  of ,  19—,  appraiser 

in  the  above  entitled  matter,  being  duly  sworn  on  his  oath  says: 
That  he  has  completed  his  appraisement  of  said  estate  and  filed  his 
report  thereof  with  the  judge  of  the  probate  court,  all  as  provided 


§  560  COLLATKIiAL   INHKUITAN'CE   TAX  5G7 

by  law;   that  he  was  actually  antl  necessarily  employed  in  and  about 
said  appraisement days,  to- wit: 

And  that  he  is  entitled,  as  pay  for  his  said 
services  at  the  rate  of  ."jf.'j.OO  per  day,  the 

sum    of $ 

That  his  actual  and  necessary  traveling 
expenses  incurred  in   the  ai)praisenient 

of  property  in  amounts  to:  I{ail- 

road  or  other  transportation .$ 

Motel,  board  and  lodging .'j; 

I  ncidentals,    as $ ? 

That  he  expended  for  postage  in  connec- 
tion with  the  notices  mailed  to  parties 

in  interest  the  sum  of $ 

That  he  was  obliged  to,  and  did  incur  the 
following  items  of  actual  and  necessary 
expense  in  connection  witli  said  ap- 
praisement not  enumerated  above: 

$ 

.$ s 


Total    $ 

Wherefore  he  prajs  that  said  sum  of  $ be  certified  to  and 

allowed  by  the  judge  of  this  court  in  his  favor  as  provided  by  law. 


Subscribed  and  sworn  to  before  me,  this day  of ,  19 — . 


Clerk  of  Probate  Court. 
T'pon   the  foregoing  affidavit  and  after  due  consideration  of  the 

proceedings  herein,   I   hereby  certify   that  ,  the  appraiser  in 

the  aforegoing  matter,  is  lawfully  entitled  to  receive  the  sum  of 
dollars  as  pay  for  his  services  and  on  account  of  his  dis- 
bursements as  such  appraiser  and  I  hereby  tax  and  settle  the  same 

at  that  amount.  , 

Judge  of  Probate  Court. 

Form  V. — Collateral  Inheritance  Tax — Entry  Assessing  and 

Fixing,  on  Report  of  Appraiser,  the  Cash  Value  of 

Estate  and  the  Amount  of  Tax  Thereon 


I  No. 


In  the  Matter  of  the  Estate  of 

,  Deceased. 

Date  of  Death,  ,  19—.  ,      „,  ^,„    .f. 

_         .  .  \     •    •  i.     *.  lerm,  19 — . 

,  Execut —  or  Administrat — .J 

In  the  Probate  Court  of  county,  state  of  Missouri,  comes 

appraiser,  hei'etofore  appointed  by  the  probate  judge  of  this 


court  to  appraise  and  fix  the  value  of  said  estate  subject  to  col- 
lateral inheritance  tax,  and  files  herein  his  report  of  such  appraise- 
ment, and  the  matter  being  submitted  and  the  probate  judge  of  this 
court,  from  such  report  and  other  proof  relating  to  such  estate,  be- 


5G8 


COLLATERAL   INHERITANCE   TAX 


560 


ing  duly  advised,   finds  that  said  departed  this  life  on  the 

day  of ,  19 — ;    that  the  names  of  the  beneticiaries  of 

said  estate,  the  cash  value  of  their  interests  in  the  personal  and  real 
estate  thereof  subject  to  said  tax,  after  deducting  debts  and  ex- 
penses, said  cash  value  and  the  amount  of  tax  thereon,  being  hereby 
assessed  and  fixed,  are  as  follows: 


Beneficiary. 

Value   of   Each 
Interest  in   the 
Personal  Prop- 
erty. 

T.„^              Value   of   Each 

rri,  ™„           Interest  in   the 
Thereon.         ^^^^   j^^^^^^ 

Tax 
Thereon. 

■ 

Said  interests  above  referred  to  include  the  following  described 
real  estate,  the  clear  market  value  of  each  parcel  of  which  is  as 
follows: 


"Witness  my  hand  and  seal  this 


day  of 


-,  19—. 


Judge  of  Probate  Court,  County  of 


Form  VI. — Notice  by  Probate  Judge,  to  Persons  Interested, 
of  Time  and  Place  of  Appraisement  by  the  Probate 
Judge.     [Not  to  be  Used  When  An  Ap- 
praiser is  Appointed.] 


State  of  Missouri,     | 

County  of  .  j 

In  the  Probate  Court  in  and  for  the  County  of 
In  the  Matter  of  the  Estate  of 

,  Deceased. 


-,  Missouri. 


No. 


To  : 

You  are  hereby   notified  that  the  undersigned   judge  of  probate 

within  and  for  the  county  of ,  state  of  Missouri,  being  judge 

of  the  court  having  jurisdiction  of  the  estate  of  said  decedent,  will, 

at  the  office  of  the  Probate  judge  of  county,  Missouri,  in  the 

city  of  ,  county  of ,  Missouri,  on  the day 

of  ,  19 — ,  commencing  at  o'clock  in  the  noon, 

proceed  to  appraise,  determine,  assess,  and  fix  the  cash  value  of  the 
estate  or  property  of  the  above  named  decedent,  or  so  much  thereof 
as  is  subject  to  the  payment  of  the  tax  on  collateral  inheritances, 
imposed  by  sections  309-331,  inclusive,  Revised  Statutes,  1909,  and 
will  then  and  there  assess  and  fix  the  amount  of  said  tax  due  upon 
the  succession  to  said  estate  or  property  of  said  decedent,  when  and 
where  you  may  attend  if  you  so  desire. 

Dated  at  the  city  of  ,  county  of ,  state  of  Missouri, 

this  ■ day  of  ,  19 — .  , 


.Judge  of  Probate  within  and  for 


County,  Missouri. 


560 


COLLATEItAL   IMIKIUTANCE  TAX 


669 


Form  VII. — Entry  Fixing  and  Assessing  Cash  Value  of  Es- 
tate, and  the  Amount  of  Tax  Thereon  Without 
Appointment  of  Appraiser 


In  the  :siatter  of  the  Estate  of 

,  Deceased. 

Date  of  death, ,  10—, 


No. 


Term,  19 — . 


,   Execut —  or  Administrat — . 

In  the  Probate  Court  of County,  State  of  Missouri. 

Due  notice  having  been  given  the  parties  entitled  thereto,  thw 
judge  of  this  court  this  day  proceeds  of  liis  own  motion  to  assess 
and  fix  the  cash  value  of  the  interests  of  the  beneficiaries  of  this 
estate  subject  to  the  collateral  inheritance  tax  and  the  judge  of  this 
court  having  heard  all  the  evidence  and  proof  and  being  fully  ad- 
vised, finds  that  said departed  this  life  on  the day  of 

,  19 — ;   that  the  names  of  the  beneficiaries  of  said  estate,  the 


cash  value  of  their  interest  in  the  personal  and  real  estate  thereof 
subject  to  said  tax,  after  deducting  debts  and  expenses,  said  cash 
value  and  the  amount  of  tax  thereon  being  hereby  fixed  and  as- 
sessed, are  as  follows: 


Beneficiary. 

Value   of   Each 
Interest   in   the 
Personal   Prop- 
erty. 

Tax 
Thereon. 

Value   of   Each 
Interest  in   the 
Real  Estate. 

Tax 

Thereon. 

Said  interests  above  referred  to  include  the  following  described 
real  estate,  the  clear  market  value  of  each  parcel  of  which  is  as 
follows: 


Witness  my  hand  and  seal,  this 


day  of 


Judge  of  I'robate  Court  of 


-,  19- 


County. 


Form  VIII. — Notice  to  Interested  Persons  of  Assessment  of 
Collateral  Inheritance  Tax 


In  the  Probate  Court  of 

In  the  .Matter  of  the  Estate  of 

Deceased. 
Date  of  death, .  19—. 


County,  Missouri. 


To 


Execut —  or  Administrat 
(see  note  below): 


-J 


No. 


Term.  19—. 


You  are  hereby  notified  that  by  order  of  said  court,  made  on  the 
day  of  ,  19 — ,   I,  as  judge  thereof,  have  assessed  and 


570 


COLLATERAL  INHERITANCE  TAX 


§560 


determined  the  cash  value  of  the  interests  of  the  beneficiaries  of 
said  estate  subject  to  collateral  inheritance  tax,  and  of  the  tax  to 
which  it  and  they  are  liable. 

That  the  name  of  said  beneficiaries  and  the  cash  value  of  their 
interests  are  respectively  as  follows: 


Beneficiary. 

Value  of  Each 
Interest  in  the 
Personal   Prop- 
erty. 

Tax 
Thereon. 

Value   of  Each 
Interest  in   the 
Real  Estate. 

Tax 

Thereon. 

If  paid  within  six  months  from  date  of  death  said  tax  is  subject 
to  five  per  cent,  discount.  If  paid  after  six  months  and  within  one 
year  from  date  of  death  the  full  amount  of  said  tax  without  interest 
or  penalty  is  to  be  collected.  If  not  paid  within  one  year  from  date 
of  death  and  time  for  payment  has  not  been  extended  by  order  of 
probate  court  then  tax  bears  interest  of  one  per  cent,  per  month 
from  date  of  death  until  paid.  If  time  of  payment  has  been  ex- 
tended, then  tax  bears  interest  at  the  rate  of  six  per  cent,  per  an- 
num from  date  of  death  until  time  to  which  extension  is  made,  and 
thereafter  interest  at  the  rate  of  one  per  cent,  per  month  until  paid. 

Time  of  payment  has  (a)  been  extended  to  ,  19 — ,  (b)  not 

been  extended. 

Witness  my  hand  this day  of  ,  19 — . 


Judge  of  said  Probate  Court. 

j^ote.— This  notice  should  be  sent  to  all  persons  known  to  be  interested  there- 
in, including  the  collector  of  revenue. 


fonn    IX. — Statutory    Notification    by    County    Collector    to 

Prosecuting  Attorney  Under  Section  329,  Revised 

Statutes  of  Missouri,  1909 


In  the  Matter  of 

Deceased. 
No.  . 


In  the  Probate  Court  of 

Missouri. 
Term,  19—. 


County, 


Statutory  Notification. 
To  the  Prosecuting  Attorney  of County,  Missouri: 


1.  This  is  to  notify  you  that  on  or  about 


one 


died. 


2.  That  said  decedent  left  certain  property  subject  to  the  payment 
of  the  collateral  inheritance  tax,  prescribed  and  due  under  the  terms 
of  sections  309  to  3.31  inclusive,  Revised  Statutes  of  Missouri,  1909. 

3.  That  of  the  estate  of  said  decedent,  was  appointed  (ex- 

ecut —  or  admlnistrat — )  and  duly  qualified  as  such. 


§  560  COLLATKRAL   INHEIUTAXri:   TAX 


571 


That  certain  of  said  property  of  said  doccdont  at  or  bocansc  of 
—  deatli  passed  either  in  possession  or  expectancy  to  the  f(jllo\v- 


ing  persons: 

Name.  Address. 


5.  That  none  of  the  persons  designated  in  the  foreRoint,'  paragrai)h 
four,  of  this  notice,  stood  in  the  relationship  to  the  decedent  of  fa- 
ther, mother,  husband,  wife,  legally  adopted  children  or  direct  lin- 
eal descendant,  and  that  the  property  referred  to  was  not  conveyed 
and  did  not  pass  for  the  particular  educational,  charitable  or  re- 
ligious purposes,  exclusively,  exempted  by  section  309,  Revised  Stat- 
utes of  Missouri,  1909. 

6.  That  the  persons  liable  to  pay  said  tax  under  article  14,  chapter 
2,  Revised  Statutes  of  Missouri,  1909,  liave  refused  or  neglected  to 
pay  same,  and  that  said  taxes  are  due  and  unpaid  under  said  article. 

7.  That  declarant   is  the  collector   of   revenue  of  the   county    of 

,  Missouri,  and  this  notice  is  given  in  pursuance  of  his  duty 

under  section  329,  Revised  .Statutes  of  Missouri,  1909. 

8.  Dated  this day  of  ,  19—. 


Collector  of  Revenue  of County,  Missouri. 


Form  X. — Petition  of  Pvosccutiug  Attorney  for  Citation  Un- 
der Section  320,  Revised  Statutes  of  Missouri,  1009 

In  the  Matter  of ,  ^     In  the  Trobate  Court  of  County, 

Deceased.                           I       :Missouri. 
No.  .  J    Term,  19—. 

Petition   of   Prosecuting   Attorney   in   the   Matter   of   the   Collateral 
Inheritance  Tax. 

Now  comes  on  this  day  of  ,  19—,  and  states 

to  the  court: 

1.  That  petitioner  is  the  prosecuting  attorney  of  county, 

Missouri. 

2.  That  on  or  about one died. 

3.  That  said  decedent  left  certain  property  subject  to  the  payment 
of  the  collateral  inheritance  tax,  prescribed  and  due  under  the  terms 
of  sections  309  to  331  inclusive,  Revised  Statutes  of  Missouri,  1909. 

4.  That  certain  of  said  property  of  said  decedent  at  or  because  of 

death,  passed  in  possession  or  expectancy  to  the  following 

persons: 

Name.  Address. 


5.  That  of  the  estate  of  decedent  was  appointed  (execut- 
or administrat — )  and  duly  qualified  as  such. 

6.  That  none  of  the  persons  designated  in  the  foregoing  paragraph 
four  of  this  petition  stood  in  the  relationship  to  the  decedent  of  fa- 


572  COLLATERAL   INHERITANCE   TAX  §  560 

ther,  mother,  husband,  wife,  legally  adopted  children  or  direct  lineal 
descendant,  and  that  the  property  referred  to  was  not  conveyed  or 
did  not  pass  for  the  particular  educational,  charitable  or  religious 
purposes,  exclusively,  exempted  by  section  309,  Kevised  Statutes  of 
Missouri,  1909. 

7.  That  the  collector  of  revenue  of  county,  Missouri,  has 

reason  to  believe  that  a  portion  or  all  of  said  tax  above  referred  to 
in  said  estate  is  due  and  unpaid,  under  article  14,  chapter  2,  Revised 
Statutes  of  Missouri,  1909,  and  that  after  the  refusal  or  neglect  of 
persons  liable  therefor  to  pay  the  same,  he  has  notified  petitioner  in 
writing  of  such  failure  or  neglect. 

8.  That  petitioner  has  probable  cause  to  believe  that  said  tax  is 
due  and  unpaid. 

Wherefore,  your  petitioner  prays  that  a  citation  issue  herein  to 
the  persons  desi.anated  in  paragraph  four  herein,  and  to  said  exec- 
ut —  or  administrat —  and  to  any  other  persons  liable  for  the  pay- 
ment of  said  tax,  citing  them  to  appear  before  this  court  on  a  date 
specified  therein  not  more  than  three  mouths  after  the  date  of  such 
citation  and  show  cause  why  the  tax  should  not  be  paid. 


Prosecuting  Attorney  for  County,  Missouri. 


Form  XL — Citation  under  Section  329,  Revised  Statutes  of 
Missouri,  1909 


In  the  Probate  Court  of County,  Missouri. 

In  the  Matter  of  Estate  of  "| 

■-,  Deceased.  I Term,  19—. 

No.  .  J 

The  people  of  the  State  of  Missouri,  to  the  Sheriff  of  the  County  of 

,  Greeting: 

We  command  you,  that  you  notify  that  personally 

be  and  appear  in  the  probate  court  of  county,  state  of  Mis- 
souri, on  the  day  of  ,  19—,  at o'clock  in  the 

noon,  to  show  cause  why  the  taxes  imposed  by  article  14, 

chapter  2,  of  the  Revised  Statutes  of  Missouri,  1909,  as  amended 
by  certain  acts  thereafter  passed,  should  not  be  paid  on  the  succes- 
sion to  property  passing  to  or  on  which  became  liable 

for  said  tax,  at,  or  by  reason  of  the  death  of  ,  deceased,  and 

such  of  them  hereby  cited  as  are  minors  are  required  to  appear  by 
guardian,  if  they  have  one,  or  if  they  have  not,  to  appear  and  apply 
for  one  to  be  duly  appointed,  or  in  the  event  of  their  neglect  or  fail- 
ure to  do  so,  a  guardian  will  be  appointed  by  the  probate  court  to 
represent  and  act  for  them,  in  the  proceedings.  Have  you  then  and 
there  this  writ. 

In   testimony  whereof,   we   have  caused  the  seal   of  the  probate 

court  to  be  hereto  afiixed,  this day  of ,  19 — ,  at  ortice  in 

the  county  aforesaid.  , 

Judge  of  the  Probate  Court  of  County,  Missouri,  at  the  City 

of the day  of in  the  year  of  Our  Lord  19 — . 


§  560  COLLATKRAL   INHKRITANCi:   TAX  573 

(The  service  of  citation  is  the  same  as  provided  under  or- 
dinary causes  in  probate  practice  in  this  State.  See  section 
309,  Revised  Statutes  190'>;  also  section  1777,  Revised  Stat- 
utes 1909,  and  Laws  1911,  page  85,  §  1.) 

The  return  may  be  in  the  following  form : 

I  certify  that   I  executed  this  writ  l)y  reading  the  same  to  the 

wit  ill  II  named on  the day  of ,  A.  D.  19 — ,  in  the 

county  of  ,  Missouri.  , 

Slit'ritf  of  County,  State  of  Mis.souri, 

By  ,  Deputy. 


Form  XII. — Order  of  Publication.    (See  Section  329,  Revised 
Statutes,  1009) 

In  the  Probate  Court  of County,  State  of  Missouri, 

In  the  restate  of  ,  "| 

Deceased.  L Term.  19 — . 

No.  .  J 

Whereas,  on  the  day  of ,  19 — ,  a  citation  was  is.sued 

under  the  provisions  of  section  329,  Revised  Statutes  of  Missouri, 
1909,  by   the  probate  judge   of  county,    Missouri,   requiring 

personally  (or  in  the  case  of  minors  by  guardian)  to  be  and 

appear  in  the  probate  court  of county,  Missouri,  on  the 

day  of  ,  19—,  at  o'clock  In  the  noon,   to  show 

cause  why  the  ta.xes  imposed  by  article  14,  chapter  2  of  the  Re- 
vised Statutes  of  Missouri,  1909,  as  amended  by  certain  acts  there- 
after passed,  should  not  be  paid  on  the  succession  to  property  pass- 
ing to  them,  or  on  which  they  became  liable  for  said  tax.  at  or  by 
reason  of  the  death  of ,  deceased,  and 

Whereas,  the  officer,  to  wliom  said  citation  was  directed  has  re- 
turned  the   same   with   the  indorsements  thereon   that  and 

of  the  persons   named   thei'ein  had  not  been  found   by  him 

after  diligent  search,  therefore  it  is  ordered  by  this  court  that  pui)- 
lication  be  made  notifying  said  parties  to  be  and  appear  as  afore- 
said, and  ,  judge,  and  ,  clerk  of  said  court  issue  this 

an    alias   citation    notifying    and   requiring   and    of 

the   above  named  persons  to  be  and   appear  in   the  probate  court 

of  county,  state  of  Missouri,  on  the  day  of  , 

19 — .  at  o'clock  in  the  noon,  to  show  cause  why  the 

taxes  imposed  by  article  14,  chapter  2,  of  the  Revised  Statutes  of 
Missouri,  1009.  as  amended  by  certain  acts  thereafter  passed,  should 

not   be  paid  on  the  succession  to  property  passing  to  or  on 

which became  liable  for  said  tax,  at.  or  by  reason  of  the  death 

of  ,  deceased,  and  such  of  them  Iiereby  cited  as  are  minors 

are  required  to  appear  by  guardian,  if  they  have  one.  or  if  they 
have  not.  to  appear  and  apply  for  one  to  be  duly  apiwinted  or  in 
the  event  of  (heir  neglect  or  failure  to  do  so,  a  guardian  will  be 
appointed  by  the  Probate  Court  to  represent  and  act  for  them,  in 
the  proceedings,   and   each   of  said   parties  is  hereby  notified  that 


574 


COLLATERAL   INHERITANCE   TAX 


§  560 


such  of  them  as  fail  to  appear  in  said  court  at  said  time,  will  be 
taken  as  confessing  liability  to  said  tax  and  judgment  will  be  ren- 
dered accordingly. 

And  it  further  ordered,  that  this  alias  citation  shall  be  published 

according  to  law  in  the  ,  a  newspaper  printed  and  published 

in  ,  county  of  ,  state  of  Missouri,  and  that  publication 

liereof  shall  be  for  four  weeks  successively,  published  at  least  once 
a  week,  the  last  insertion  to  be  at  least  fifteen  days  before  the  com- 
mencement of  the  • term  of  this  court. 

Witness  our  hand  and  seal  of  the  probate  court,  county  of , 

this  day  of  ,  19 — .  • , 


Judge  of  Probate  Court, 
Clerk  of  Probate  Court  of 


County,  Missouri. 


County,  Missouri. 


Form  XIII. — Order  and  Decree  Fixing  Tax  and  Directing 
Payment  under  Section  329,  Revised  Statutes  of  Missouri, 
1909,  and  Making  Provision  for  Payment  by  Execu- 
tor  or   Administrator   Both   Before   and   After 
Beneficiaries  Have  Received  Legacies 


In  the  Probate  Court  of 

In  the  Estate  of , 

Deceased. 
No.  . 


County,  Missouri. 


Term,  19—. 


county  having  hereto- 


The  judge  of  said  probate  court  of  — 
fore  on  the  day  of  ,  19 — ,  issued  a  citation  in  pursu- 
ance of  section  .329.  Revised  Statutes  of  Missouri,  1909,  to  various 
pei'sons  therein  named,  being  the  execut —  (administrat — )  of  said 
estate  and  the  persons  acquiring  property  in  the  above  estate  sub- 
ject to  the  collateral  inheritance  tax,  imposed  by  sections  ;}09  to 
331,  inclusive,  Revised  Statutes  of  Missouri,  1909,  directing  them  to 

be  and  appear  before  this  court  on  the  day  of ,  19 — , 

to  sliow  cause  why  said  tax  should  not  be  paid,  and  the  cause  com- 
ing on  for  hearing,  and  the  court  having  lieard  all  the  evidence 
and  proof,  and  being  fully  advised,  finds: 

That  the  names  of  the  beneficiaries,  and  the  clear  market  value 
of  their  respective  interests  in  said  estate  subject  to  said  tax  and 
the  amount  of  the  tax  due  thereon,  are  as  follows: 


Beneficiary. 

Value  of  Inter- 
est  in   Person- 
alty. 

Amount    of 
Tax   There- 
on. 

Value  of  Inter-     Amount    of 
est  in  Real  Es-    Tax    There- 
tate.                          on. 

1 

1 



1 

1   ' 

It  is  therefore  ordered  that  said  beneficiaries  pay  said  tax  upon 
their  respective  interests  to  the  collector  of  revenue  of  this  county 


§   SCO  COLLATERAL   INIIEUITANCE   TAX  575 

to^'C'tlier  with  interest  upon  tiie  tax  assessed  against  earh  of  them 

respectively,  at  the   rate  of  per  cent,   per  annum   from    the 

day  of (date  of  death  of  decedent)  to  the  date  of  pay- 
ment, together  with  the  costs  of  tliis  proceeding,  and  that  tlie  said 
execut —  (administrat — )  be  and  is  hereby  authorized  and  ordered  to 
deduct  from  the  sliare  of  each  beueliciary  in  any  money,  legacy 
or  personal  property  for  distribution  in  h—  charge  for  said  bene- 
ficiary a  sum  of  money  e(pial  to  the  amount  of  said  tax  on  his  re- 
spective interest  therein,  with  interest  on  said  tax  as  ordered  here- 
in, or  to  secure  from  said  beneficiary  a  sum  of  money  eipial  to  said 
tax  and  interest,  before  paying  or  delivering  the  said  money,  legacy 
or  personal  property  to  said  beneficiary,  wliich  said  sum  of  tax  and 
interest  thereon  the  said  execut —  (adnnnistrat — )  shall  pay  over  to 
the  collector  of  revenue  of  this  county,  and  if  said  execut —  (ad- 
ministrat— )  has  already  paid  or  delivered  any  or  all  of  said  mon- 
eys, legacies  or  personal  property  over  to  the  beneficiary  or  bene- 
ficiaries, he  shall  nevertheless  pay  over  said  tax  against  the  succes- 
sion thereto,  together  with  interest  as  aforesaid  at  the  rate  of 

per  cent,  per  annum  from  the day  of (date  of  death  of 

decedent),  to  the  collector  of  revenue  of  this  county ;  provided  that 
the  payment  of  said  tax,  or  interest,  to  the  collector  of  the  rev- 
enue, as  aforesaid,  by  the  beneficiary  or  beneficiaries  above  named, 
upon  tlie  succession  to  any  such  money,  legacy  or  personal  prop- 
erty, shall  to  the  extent  of  the  amount  paid,  relieve  the  said  ex- 
ecut—  (administrat — )  from  liability  therefor;  and  provided,  also 
that  the  payment  to  the  collector  of  revenue  of  this  county  of  said 
tax  or  interest  by  the  said  execut—  (administrat — )  for  which  said 
execut —  (administrat — )  is  liable  and  which  is  herein  assessed 
against  any  one  or  more  of  said  beneficiaries,  shall  to  the  extent  of 
the  amount  paid,  relieve  said  beneficiary  or  beneficiaries  from  lia- 
bility to  the  collector  of  revenue  therefor.  It  is  further  ordered 
that  this  finding  be  certified  to  the  collector  of  revenue  of  this 
county. 

Witness  my  hand  and  seal  this  day  of ,  19 — . 


Judge  of  Probate  Court  of County,  Missouri. 


Table  on  IVIiicli  to  Compute  Value  of  Life  Estates  and  Es- 
tates for  Years  in  Connection  zvitli  Inheritance  Tax. 
Sections  323  and  6925,  Revised  Statutes 
of  Missouri,  1009 

Under  the  statute  the  following  is  the  table  to  be  used  in  connec- 
tion with  the  inheritance  tax.  From  it  is  ascertained  the  present 
value  of  an  annuity  of  one  dollar,  to  be  received  at  the  end  of  ev- 
ery year  that  a  person  now  aged  from  10  to  99  may  live.  This  ta- 
ble is  computed  on  the  assumption  that  the  payments  of  $1.00  per 
annum  are  to  liegin  at  one  year  from  the  present  time;  for  the  pur- 
IX)se  of  obtaining  the  present  value  of  $1.00  per  annum  where  the 
payment  is  to  begin  at  the  present  time,  there  should  be  added  to 


576  COLLATERAL  INHERITANCB  TAX  §  560 

the  figures  in  this  table  $1.00  for  each  year.  Thus  at  the  age  of  5.5, 
if  an  aimiiity  of  $1.00  is  to  be  paid  beginning  at  the  present  time, 
the  value  is  .$11,077. 


Age. 

Age. 

Age. 

10 

$16,556 

40 

$13,433 

70 

$5,983 

11 

16.502 

41 

13.252 

71 

5.718 

12 

16.445 

42 

13.064 

72 

5.457 

13 

16.386 

43 

12.868 

73 

5.200 

14 

16.324 

44 

12.666 

74 

4.947 

15 

16.259 

45 

12.456 

75 

4.699 

16 

16.192 

46 

12.241 

76 

4.4.55 

17 

16.121 

47 

12.020 

77 

4.216 

18 

16.048 

48 

11.794 

78 

3.982 

19 

15.971 

49 

11.563 

79 

3.754 

•20 

15.891 

50 

11.326 

80 

3.531 

21 

15.S08k 

51 

11.085 

81 

3.313 

22 

15.722 

52 

10.840 

82 

3.099 

23 

15.6.'}2 

53 

10.590 

83 

2.889 

24 

15.539 

54 

10.336 

84 

2.681 

25 

15.442 

55 

10.077 

85 

2.474 

26 

15..341 

56 

9.816 

86 

2.268 

27 

15.236 

57 

9.550 

87 

2.063 

28 

15.127 

58 

9.282 

88 

1.S58 

29 

15.014 

59 

9.010 

89 

1.655 

30 

14.896 

60 

8.735 

90 

1.456 

31 

14.774 

61 

8.459 

91 

1.261 

32 

14.647 

62 

8.182 

92 

1.072 

33 

14.515 

63 

7.903 

93 

0.S92 

34 

14.378 

64 

7.625 

94 

0.726 

35 

14.2.35 

65 

7.347 

95 

0.576 

36 

14.087 

66 

7.070 

96 

0.456 

37 

13.933 

67 

6.795 

97 

0.363 

38 

13.773 

68 

6.521 

98 

0.238 

39 

13.606 

69 

6.251 

99 

0.000 

The  operation  of  this  table  in  computing  inheritance  taxes  ap- 
pears from  the  following: 

Illustration:  If  John  Jones  dies,  leaving  a  life  estate  in  a  farm 
(which  farm  is  worth  $20,000),  to  his  brother  William,  with  remain- 
der in  fee  to  his  brother  Thomas,  and  at  the  death  of  the  deceased, 
William  is  forty  years  of  age,  their  respective  interests  are  com- 
puted as  follows:  Five  per  cent,  of  $20,000  is  assumed  to  be  the 
annual  income  or  annuity  from  this  farm  (see  section  323,  Revised 
Statutes  of  Missouri  1909).  This  sum  ($1,(X)0)  represents  the  annu- 
ity which  passes  to  William.  By  reference  to  the  table  of  annui- 
ties, it  will  be  found  that  the  present  value  of  every  dollar  of  the 


§  560  COLLATERAL  INHERITANCE  TAX  577 

amount  Is  $13,433;  consequently  the  present  value  of  Williiim's  es- 
tate is  $13,133.00.  The  value  of  Thomas  Jones*  remaindfr  is  there- 
fore the  value  of  the  farm  itself,  ifL'O.OOO,  less  the  value  of  Wil- 
liam's estate  ($13,433.00),  leaving  the  present  value  of  Thomas'  es- 
tate $G,5G7.  If  Thomas  does  not  give  bond  required  in  section  314, 
within  one  year  from  the  death  of  John,  his  tax  becomes  immedi- 
ately due  and  payable  under  the  provisions  of  section  314.  The  in- 
heritance tax  due  upon  William's  interest  in  the  farm  is  five  per 
cent,  of  $13,433.00;  that  upon  Thomas'  interest  is  five  per  cent. 
of  $0,507.00.  If,  however,  Thomas  gives  bond  for  payment  and 
waits  until  the  death  of  William  to  pay  his  tax,  he  must  pay  upon 
the  full  value  of  the  farm. 

Note.— The  table  found  in  section  8499,  Rev.  St  1909,  Is  computed  on  the  basla 
of  six  (6)  per  cent,  and  Is  not  available  for  use  In  assessing  the  collateral  in- 
heritance tax  on  life  estates. 

KEL.M0.P.G.— 37 


TABLE  OF  CASES  CITED 


[THE   FIGUKE.S    RKKKR    TO    PAGES] 


Abel  V.  Burgett,  393. 
Ackermann   v.    Haumueller,    506, 

514. 
Ackley  V.  Staehlin,  .''.96. 
Acreback  v.  Myer,  449. 
Adams  v.  Adauis,  391,  392,  447. 
Adams  V.  Cowles,  525. 
Adams    v.    I.arrimore,    228,    319, 

325,  408,  410. 
Adams  v.   St.  Louis  &  S.  F.   Ky. 

Co.,  184. 
Adams  V.  Winiie,  50. 
Adey  v.  Adey,  138. 
.\dsit  V.  Adsit.  339. 
Agan  V.  Shannon.  312,  316,  326. 
Ainge  v.  Corby,  .'522. 
Aiple-IIemraeluianu    Ileal    Estate 

Co.  V.  Spelebrink,  460. 
Albert  V.  Sanford.  257,  376.  379. 
Albert   Grocer    Co.    v.    Estate    of 

Painter,  274. 
Alberts'  Estate,  In  re,  117. 
Aldridge  v.  Aldridge.  94. 
Alexander  v.  Alexander.  79. 
Alexander  v.  Grand  Ave.  Ry.  Co., 

179. 
Alleman  v.  Manning,  351. 
Allen  V.  Allen,  3. 
Allen  V.  Clark,  392. 
Allen  V.  Claybrook,  34,  88. 
Allen  V.  Harnett,  103,  438. 
Allison  V.  Chaney,  79,  112. 
Allison  V.  Hunter.  317. 
American  Cent.   Ins.   Co.  v.    Chi- 
cago &  A.  Ry.  Co.,  187. 
Ames  V.  Downing,  194. 
Ames  V.  Scudder.  102. 
Ames  V.  Scuddy,  97. 
Ames'  Estate,  In  re.  243,  367. 
Amonett  v.  Montague.  258. 
Amos  V.  Livingston,  311. 


Ancell  V.  Southern  Illinois  &  Mo. 
Bridge  Co.,  485,  491. 

.Vnderson  v.  Cary,  84. 

Anderson  v.  Kent,  454. 

Anderson  v.  Roberts.  99. 

Anderson  v.  Scott,  36. 

Andrews  v.  Broughton,  432,  443. 

Andruss  v.  Doolittle,  208. 

Angell  V.  Hester,  259. 

Ansley  v.  Richardson,  117. 

Anthony  v.  Rice,  453. 

App  V.  Dreishach,  41.5. 

Appleby  v.  Brock,  8,  62,  73. 

Applegate  v.  Smith,  71. 

Archambault  v.  Blanchard,  13. 

Arkansas  City  Bank  v.  Cassidy, 
195. 

Armor  v.  Frey,  78. 

Armor  v.  Pye,  282. 

Arthur  v.  Arthur,  50. 

Ashton  v.  Ingle,  448. 

Atchinson  Sav.  Bank  v.  "Wheel- 
er's Adm'r,  454. 

Aubuchon  v.  Bender,  348,  349. 

Aubuchon  v.  Lory,  172,  242,  247, 
292. 

AuU  V.  Day,  350. 

.Vull  V.  St.  Louis  Trust  Co.,  106, 
112,  354. 

Austin  v.  Feland.  255. 

Avaro  v.  Avaro.  24.  26. 

Ayers  v.  Donnell,  269. 

Aylward  v.  Briggs,  8,  15,  22,  76. 

B 

Baer  v.  Pfaff.  216. 

Bagnell     v.     Chemical     Bank     of 

Sweet  Springs,  2.59. 
Bailey     v.     Trustees    of    Lincoln 

Academy,  343,  362,  392. 
Bains  v.  Bullock.  90. 
Baker  v.  Hunt,  240. 


Kel.Mo.P.G. 


(579) 


580 


CASES   CITED 
[The  figures  refer  to  pages] 


Baker  v.  Luiupee,  354. 

Baker  v.  Mclnturff,  175,  177,  178. 

Baker  v.  Schoeueinan.  425, 

Baker  v.  Underwood,  394, 

Baldwin  v.  Baird,  192, 

Baldwin  v.  Davidson,  390. 

Baldwin  v.  Merrick,  183. 

Baldwin  v.  Wliitcomb,  lOS,  300. 

Bales  V.  Perry,  101. 

Ball  V.  Ball,  5,  31,  103,  104,  339, 
340.  453. 

Bambrick  v.  Banibrick,  271,  277, 
416. 

Bambrick  v.  Webster  Groves 
Presbyterian  Church  Ass'n,  129, 
146,  204. 

Bank  of  Atchison  County  v.  Dur- 
fee,  188. 

Bank  of  Commerce  v.  Cham- 
bers, 5. 

Bank  of  the  United  States  v.  Bev- 
erly, 415. 

Banks  v.  Banks,  43,  44,  45,  47,  51, 
54,  55,  61,  65. 

Barheydt  v.   Barheydt,  86. 

Barker  v.  Mechanic  Fire  Ins. 
Co.,  49. 

Barkley  v.  Barkley  Cemetery 
Ass'n,  22,  76. 

Barkley  v.  Donnelly,  74, 

Barlow  v,  Delaney,  394. 

Barnard  v.  Batemau,  55,  64,  68, 

Barnard  v.   Keathley,  286, 

Barnes  v.  Crowe,  62. 

Barnes  v.  Bees,  425. 

Barnes  v.  Stanley,  398,  399,  404. 

Barnum  v.  Baruum,  350,  538. 

Barre  Turnpike  Corp.  v,  Apple- 
ton,  244, 

Barstow  v.  Goodwin,  50. 

Bartels  v.  Kinnenger,  449. 

Bartlett  v.  Ball,  200. 

Bartlett  v.  Tinsley,  433. 

Barton  v.  Barton,  .390. 

Barton  v.  Walker,  451,  454, 

Bassett   v.    Elliott's    Adm'r,    268, 

332,  334, 
Bates  V,  Dewson,  90. 
Bates  V.  Hamilton,  98,  102,  267. 
Bates  V.  Scheik,  282. 
Bates  V.  Sylvester,  249. 
Baxter  v,  Woll,  263. 


Beal    v.    Harmon,    477,    483,    486, 

493. 
Bealey  v.  Blake,  441,  448, 
Bealey  v.  Blake's  Adm'r,  172,  187, 

247. 
Bealey    v.    Smith,    130,    241,    242, 

243,  306. 
Bean  v.  Kenmuir,  85. 
Beaumont  v.  Keim,  43.  51. 
Beck  V.  Dowell,  179.  262. 
Beck  V,  Metz,  33,  34. 
Becker  v.  Rardiu,  326. 
Beckmann  v.  Meyer,  448,  449. 
Beckwith  v.  Boyce,  184. 
Becraft  v.   Lewis,   130,   135,   243, 

408. 
Beecher  v.  Buckingham,  178. 
Beekman  v.  Richard.son,  229,  272, 

394. 
Bell  V.  Hewitt's  Ex'rs,   264. 
Bender  v.  Dietrick,  79. 
Bengough  v.  Walker,  86. 
Benue  v,  Schnecko,  133,  198,  300. 
Benoist  v.  Murrin,  8,  73,  76.  151. 
Bent's  Adm'r  v.  St.  Vraiu,  .352. 

T'.erberet  v.  Berberet,  9,  19,  22,  26. 

Berkshire  v.  Hover,  301,  513. 
Berry    v.    Shackelford's    Adm'rs, 
281. 

Bethurum,  Eix  parte,  113, 

Bevin  v.  Powell,  531. 

Beyer  v.  Hermann,  19,  22. 

Bieber's     Adm'r     v.     Boeckmann, 
202. 

Biegler    v.    Supreme    Council    of 
American  Legion  of  Honor,  364. 

Bigelow  V.  Gillott,  45. 

Biggs  V.  Peacock,  294. 

Bingham  v.   Maxcy,  233. 

Binz  V.  Hyatt,  228,  269. 

Bircher  v.  Boemler,  264. 

Bircher  v.  Parker,  183,  184, 

Bircher  v.  St.  Louis  Sheet  Metal 
Ornament  Co.,  100. 

Birdsall  v.  Hewlett,  .342. 

Black  V.  Dressell's  Heirs,  169. 

Black  V.  Epstein,  451,  4.52. 

Black  V.  Henry  G.  Allen  Co.,  192. 

Blanchard  v.  Andrews,  496,  497. 

Blanchard  v.  Nestle,  14, 

Blandin  v.  Blandin,  49, 

Blandy  v.  Asher,  452. 


Blatz  V.  Lester,  203. 
Blickensdcrffcr   v.   Ilanna,   322. 
Block  V.  Block,  33. 
Bloomer  v.   Bloouier,  201. 
Blount  V.  llaiuey,  1G7,  175,  208. 
Board   of   Trustees  of   Methodist 

Episcopal   Church    v.   May,    80, 

82. 
Bobb  V.  Barnum,  488,  490. 
Bobb  V.  Bobb.  102. 
Boeder  v.   I.aujieiiberg,    139,   167, 

171. 
Bogart  V.  Bogart,  5,  30,  32,  104, 

340. 
Boggs  V.  Bard,  244. 
Bomino's  Estate,  In  re,  227,  363. 
Bompart'.s  Adm'r  v.  Lucas,  311. 
Bone  V.  Tyrrell,  86,  88,  486,  490. 
Bouiiell  V.  Pack,  187. 
Booker  v.  Armstrong,  161.  166. 
Borgess  In  v.  Co.  v.  Vette,  259. 
Bower  v.  Daniel,  41. 
Bowie,  In  re,  Estate  of,  102. 
Boyce  v.  Christy,  548. 
Boyd  V.  Cook,  46. 
Boyd  V.  Hazel  tine,  96. 
Boyd  V.  Missouri     Pae.     R.     Co., 

251,  252,  253. 
Boyer  v.  Dively.  76,  96,  353. 
Boynton  v.  Dyer,  391. 
Boynton  v.  Miller,  100. 
Brackenridge  v.  Holland.  392. 
Bradford  v.  Blossom,  75. 
Bradford  v.  Tilly,  187. 
Bradley  v.  Bradley,  34,  100. 
Bradley  v.  AVoerner,  121,  281. 
Bradshaw  v.  Yates,  22. 
Bradstreet  v.  Kinsella,  G5,  71,  84. 
Bramell  v.  Adams,  87,  93,  95,  229, 

269,  837,  394. 
Bramell  v.  Cole,  86,  87,  343. 
Branch's  Estate,  In  re,  296. 
Brandon   v.   Carter,  98,   101,  294, 

464. 
Brandon  v.  Dawson,  30,  201,  202. 
Branson  v.  Branson,  389. 
Brant  v.  Brant,  103. 
Brashears  v.  Ilicklln,  .386,  417. 
Brawford  v.  Wolfe,  103,  129,  147. 
Bray  v.  Adams,  312,  316.  :V2{',.  328. 
Bredell  v.  ColUer,  92,  93,  95,  109, 

337. 


CASES  CITED  581 

[The  figures  refer  to  pages] 

Bredow  v.  Mutual  Pavings  Insti- 
tution, 194,  39S,  402. 

Breidenstein  v.  Bertram,  35,  96, 
352. 

Brenner  v.  Bigelow,  478. 

Brent  v.  Grace's  Adm'r,  483. 

Bretz  V.  Matuey,  .32,  103. 

Brewer  v.  Cary,  200,  405,  466. 

Brewington  v.  Brewington,  445, 
452,  4.".5. 

Briant  v.  Garrison,  2,  4,  20,  79, 
81,  82. 

Bridwell  v.  Swank,  22,  77. 

Bright  V.  White,  68. 

Briukerhoff-Farriss  Trust  &  Sav- 
ings Co.  V.  Home  Lumber  Co., 
188. 

P.rinlanan  v.  Rueggesick,  9. 

Brinmier  v..  Sohier,  52. 

Britian  v.  Fender,  276. 

Broadway  Nat.  Bank  v.  Adams, 
84. 

Brooks  v.  Brooks.  SO,  81,  83. 

Brooks  V.  Ducli worth,  108. 

Brooks  V.  Eskins,  69. 

Brown  v.  Baldwin,  182. 

Brown  v.  Brown,  50. 

Brown  v.  Brown's  Adm'r,  440, 
447,  454. 

Brown  v.   Kvans,   169. 

Brown  v.  Fulkerson,  94. 

Brown  v.  Lynch,  408. 

Brown  v.  Massey,  61. 

lirown  V.  !Moore,  431. 

Brown  v.  Tucker's  Estate,  348, 
438. 

Brown  v.  Tuschoff,  82,  89,  91. 

Brown  v.  Weatherby,  111,  143, 
145,  146,  164,  166. 

Brown  v.  Woody,  313,  316. 

Brown's  Adm'r  v.  Fin  ley.  110. 
169. 

Browning  v.  Richardson,  399,  404, 
407. 

Brownlee  v.  Fenwick,  36. 

Broyles  v.  Cox,  446. 

Brubaker  v.  Jones,  311. 

Bruening's  Estate  v.  Oberschelp, 
405,  427. 

Brush  V.  Brush,  49. 

Brush  V.  Wilkins,  47. 

Bryan  v.  Bander,  329,  487. 


)82 


r.ryau  v.  Blytlie,  394. 

Hryan  v.  Mundy's  Adm'r,  22S. 

lU-yant  v.  Christian,  104,  112,  438. 

liryant  v.  McCuue,  430,  444. 

liucli  V.  Aslibrook,  448. 

Budd  V.  Brooke,  68. 

Buie's  Estate  v.  Wliite,  477. 

Biinel  V.  Nester,  100. 

Burford  v.  Aldridge,  87,  99. 

Burgess  v.  Bowles,  31. 

Burke  v.  Adams,  7. 

Burrus  v.  Cook,  240. 

Burton  v.  Rutherford,  228,  2G9. 

Burwell  v.   Cawood,  39.j. 

Busby's  Adm'x  v.  Chenault,  397. 

Butler  V.  Carpenter,  100. 

Butler  V.  Lawson,  110,  284. 

Buxton  V.  Dearborn,   447. 

Buxton  V.  Kroeger,  94. 

Byerly  v.  Donlin,  110,  111,  390. 


Cabanne  v.  Skinker,  71.  79,  1.50. 
Cabeen  v.  Mulligan.  454. 
Caeman  v.  Van  Ilarke.  42,  43. 
Caldwell  v.  Hawkins.  109. 
Caldwell  v.  Lockridge.  .'592. 
Callahan  v.  Biggins,  258,  263. 
Camden  v.  Plain,  316,  514. 
Campbell  v.  Baldwin,  245. 
Campbell  v.  Beaumont,   21. 
Campbell  v.  Campbell,  114. 
Campbell  v.  Carlisle,    10,    15,    56, 

77. 
Campbell  v.  Coonradt,  448. 
Camper  v.  Hayeth,  343. 
Cape  Girardeau  Bell  Tel.   Co.  v. 

Hamil,  266. 
Cape   Girardeau   County,   to    Use 

of    Road   and   Canal    Fund,    v. 

Harbison,  168,  169,  170. 
Carder  v.  Culbertson,  486. 
Cardwell  v.  Stuart,  218,  219. 
Carey  v.  West,  127,  325,  328,  329, 

431,  443. 
Cargile  v.  Wood,  430. 
Carl  V.  GabeJ,  10,  .55,  77. 
Carlin  v.  Mullery,  443. 
Carmony  v.  Hoober,  415. 
Carney  v.  Havens,  319,  329. 


CASES   CITED 
[The  figures  refer  to  pages] 

Carpenter  v.  Supreme  Council  Le- 
gion of  Honor,  55. 

Carr  v.  Catliu,  400. 

Carr  v.  Dings,  80,  SO,  .S<8. 

Carr  v.  Lackland,  441. 

Carr  v.   Spannagel,  152,  171,  406. 

Carroll  v.  Woods,  98. 

Carter  v.  Alexander,  80. 

Case  V.  Mitzenburg,  451. 

Casey    v.    Wrought    Iron    Bridge 
Co.,  243. 

Cash  V.  Lust,  8,  22,  54,  55,  62,  65, 
72.  77. 

easier  v.  Gray,  5. 

Cason  V.  Cason,  347. 

Cassatt  V.  Vogel,  283,  284. 


Casteel  v.  Potter,  433. 

Castleman  v.  Castlenian,  438,  440. 

Castleman  v.  Relfe,  487. 

Catholic  University  of  America  v. 
O'Brien,   12. 

Catlett  V.  Catlett,  19,  23. 

Catlin  V.  Underbill,  244. 

Cauley  v.  Truitt,  343. 

Chamber's  Adm'r  v.  Smith's 
Adm'r,   269. 

Chambers  v.  City  of  St.  Louis,  97, 
99. 

Chambers  v.  Kupper  Benson  Ho- 
tel Co.,  251. 

Chandler  v.  Chandler,  310. 

Chandler  v.  Stevenson,  168,  2SS, 
389. 

Chapman  v.  McGrath,  450. 

Chapman  v.  Merritt,  297. 

Chariton  County  v.  Hartman, 
530,  536. 

Charlton  v.  Brown,  59,  64,  65,  68. 

Chew  V.  Keller,  21. 

Childress  v.  Southwest  Missouri 
R.  Co.,  251. 

Childs  v.  Wesleyan  Cemetery 
Ass'n,  97. 

Chism's  Adm'r  v.  Williams,  93. 

Chouquette  v.   Barada,   .35. 

Chouteau  v.  Missouri  Pac.  Ry. 
Co.,  30. 

Chrisman  v.  Linderman,  85. 

Chrisman  Sawyer  Banking  Co.  v. 
Strahorn-Hutton-Evans  Com- 
mission   Co.,    195. 

Christ  V.  Kuehue,  22. 


CASES   CITED 
[The  figures  refer  to  pages] 


583 


Christy  v.  Chicago,  B.  &  K.  C.  Ry. 

Co.,  288,  389. 
Church  V.  Church,  200. 
Citizens'    State    Bank    v.    Berry, 

164,  531. 
Citizens'    State    Bank    v.    Pettit, 

109. 
City  of  Carondelet  v.  Desnoyer's 

Adm'r,  268.  273,  274. 
City  of  Kansas  v.  Hannibal  &  St. 

J.  R.   Co.,  202. 
City  of  St.  I>ouis  v.  Hollrah.  '>?,0. 
City  of  St.  Louis  v.  Koch,  lOS. 
City  of  St.  Tx)uis  v.  Mointz,  123. 
ClarlJ  V.  Bettolheini,  271.  336,  362. 
Clark  V.  Carter.  54.   100. 
Clark  V.  Henry's  Adm'r,  109, 110. 
Clark   V.    State,   to   Tse   of   \Vil- 

liams.  415. 
Clark  V.  Thias,  446. 
Clarke  v.  Sinks.  344.  356,  381. 
Clarkson  v.  Clarkson.  S6. 
Clarkson  v.  Hatton,  04,  349,  538. 
Clay  V.  :Mayr,  200. 
Clements,  In  re,  538. 
Clinton's  Estate,  In  re.  111,  218, 

219.  222. 
Clotilde  V.  Lutz,  80,  83. 
Clyce  V.  Anderson,  390.  514. 
Cocker  v.  Cocker,  414. 
Codding  v.  Whitaker,  242. 
Cohen    v.    Atkins,   289,    336,    426, 

518. 
Cohen  v.  Herbert,  65,  71,  72. 
Cohen  v.  Kyler,  181. 
Coil  V.  Pitman's  Adm'r,  108,  110. 
Cole  V.  Fitzgerald,  264. 
Coleman  v.  Clark,  96. 
Coleman  v.  Coleman,   460. 
Coleman  v.  Farrar,  107.  129.  141, 

146,  525,  531,  533.  534,  560. 
Coleman  v.  Ilutchenson,  93. 
Collamore    v.    Wilder,    170,    228, 

230,   272,   346. 
Collier  v.  Gamble,  96. 
Collier  v.  Grimesey,  84. 
Collier  v.  Wilson.  107. 
Collins  V.  Star    Paper    Mills    Co., 

251. 
Collins  V.  Trotter,   529.  531. 
Colville  V.  Judy,  108. 
Comerford  v.  Coulter,  214,  369. 


Commonwealth  v.  Wenrick,  420. 
Compton  V.  McMahan.  127,  293. 
Condit  V.  Maxwell.  98.  100. 
Connaughton  v.  Sand.s,  446. 
Connecticut  Mut.  Life  Ins.  Co.  v. 

Smith,  98. 
Connell  v.  Crosl)y,  555. 
Conner  v.  Skaggs.  74. 
Connor  v.  Paul.  147. 
Cook  V.   Couch.  20,  21. 
Cooke  V.  McNeil,  181,  182. 
Coombs  V.  Crabtree.  225. 
Cooper  V.  Duncan.  288. 
Copenhaver  v.  Copenhaver,  350. 
Copenhaver,  In  re,  113. 
Cornelison  v.  Browning,  68. 
Cornelius  v.  Smith,  97. 
Cornwell  v.  Wulff,  20.  21. 
Corrigan  v.  Morris,  108. 
Corrigan  v.  Ticrnay.  90. 
Corson  v.  Waller,  271. 
Couch  V.  Gentry,  9. 
Coughlin    V.    Ryan,    5,    133.    197, 

198,  200. 
Cowan  V.  Shaver,  55. 
Cowgill  V.  Linnville.  161,  389. 
Cox  V.  Boyce.  108,  109,  112,  493. 
Cox  V.  Cox,  19.  75. 
Cox  V.  Jones,  79,  80,  81,  84. 
Cox  V.  Osage  County,  534,  535. 
Cox  V.  Smith,  91. 
Cozzens  v.  Jamison,  41,  49,  51. 
Craig  V.  Craig.  26,  60,  342. 
Crasliu  v.  Baker,  217. 
Cravens  v.  Faulconer.  24. 
Cravens  v.  New    York    Life    Ins. 

Co.,   196. 
Crawford  v.  Doppler.  281. 
Crawford  v.  Jones,  100. 
Crawford's  Adm'r  v.  Lehr,  169. 
Creasy  v.  Alverson,  62,  64,  65,  80. 
Creath  v.  Dale,  451. 
Crecelius  v.  Hurst,  440. 
Crenshaw  v.  Creek,  442. 
Cresse's  Estate,   In  re,  136. 
Crichton  v.  Symes,  86. 
Crist  V.  Crist,  3.38. 
Crockett  v.   Althouse,   151,  532. 
Crohn  v.  Clay  County  State  Bank, 

1.^50.  151.  170.  '243.  268. 
Crook  V.  TuU.  194,  395.  39S. 
Crosbie  v.  Macdoual,  52. 


S84  CASES 

[The  figures 

Cross  V.  Hoch.  8,  20.  79,  81,  85,  86. 
Cross  V.  Williams,  61. 
Crossan  v.  Crossan,  9. 
Crouse,  In  re.  527. 
Crow  V.  Crow.  258. 
Crow  V.  Moyersieck,  525. 
Crow  V.  Weidner,  398. 
Crowley  v.  Crowley,  98. 
Crowson  v.  Crowson,  15. 
Cruce  V.  Cruce,  257,  376. 
Crum  V.  Cniiu.  8,  9. 
Cnendet  v.   Henderson,   153,   426, 

428,  429. 
Cummings  v.  Cumniings,  444. 
Cunningham  v.  Anderson.  310. 
Cunningham  v.  Pacific  E.  R.,  108. 
Curatorship  of  ^Yhite,  In  re,  501. 
Curd  V.  Brown,  100,  258. 
Curling  v.  Hyde,  .347. 
Curry  v.  Fulkinson's  Ex'rs,  200. 
Curtis  V.  :Moore,  100. 
Cutler  V.  Zollinger,  531. 


D 

Dalrymple  v.  Craig,  102. 
Dameron  v.  Lanyon,  208. 
Danforth's  Estate,  In  re,  876,  426. 
Darby  v.  Cabanne,  524. 
Darling  v.  Potts,  99,  102. 
Darr   v.   Thomas,   307,    309,    811, 


Darrah  v.  The  Lightfoot,  369. 
Darrier  v.  Darrier,  350. 
Dausman  v.  Rankin,  15,  62,  76. 
Davidson  v.  Davis,  340. 
Davidson  v.  I.  M.  Davidson  Real 

Estate  &  Investment  Co.,  109, 

503. 
Davidson  v.  Koehler,  31. 
Davis,  In  re,  381,  .390. 
Davis  V.  Davis,  80. 
Davis  V.  Evans,  4.33. 
Davis  V.  Green,   434. 
Davis  V.  Morgan,  179. 
Davis  V.  Mugan,  181,   184,  185. 
Davis  V.  Smith,   111. 
Davis  V.  Stouffer,  430. 
Davis  V.  Vories,  191. 
Davis  &  Rankin  v.  Hendrix.  262. 
Da^ason,  Estate  of.  In  re,  130. 
Dawson,  Ex  parte,  498. 


CITED 
refer  to  pages] 
Dawson  v.  Wombles,  278. 
Defoe  V.  Defoe,  9,  70. 
De  Jarnett  v.  Harper,  464,  407. 
Delano,  In  re,  114. 
Delisle  v.  McGillivary.  283. 
Denny  v.  Faulkner,  242,  367. 
Derge  v.  Hill,  160. 
Desloge  v.  Tucker,  314,  426. 
Devore  v.  Devore,  254. 
Devore  v.  Pitman,   420. 
Dickens  v.  Miller,  364. 
Dicker  son  v.  Bridges,  195. 
Dickerson    v.    Dickerson,    79,    80, 

94. 
Dickey  v.  Malechi,  46,  61. 
Dickson  v.  Desire's  Adm'r,  96. 
Dietrick  v.  Murdock,   182. 
Diffenderfer   v.    Board   of   Presi- 
dent,  etc.,  of  St.  Louis  Public 
Schools,  98. 
Dilworth  v.  Rice,  65. 
Dingman  v.  Romine.  15,  21,  76. 
Dingle  v.  Rollick,  227. 
Dingman's  Estate,  In  re,  554. 
Dix  V.  Morris,  384,  385,  .390,  421. 
D.   M.  Osborne   &   Co.   v.   Evans, 

4.50. 
Dobbins  v.  Humphreys.  351. 
Dobyns  v.  McGovern,  415. 
Dodge  V.  Beeler,  209. 
Dodge  V.  Sherwood,  96. 
Dodsou  V.  Scroggs,  109,  245. 
Doerge  v.  Heimenz,  228. 
Donaldson  v.  Allen,  98,  294. 
Donnell  Mfg.  Co.  v.  Repass,  14.3. 
Donnewald    v.    Turner    Real    Es- 
tate Co.,  181,  183,  184,  185. 
Donovan  v.  Griffith,  432. 
Dooley  v.  Ryan's  Estate,  2S9. 
Dougherty  v.  Barnes,  32,  103. 
Dougherty  v.  Dougherty,  460. 
Dowdy  V.  Wamble,  107. 
Dowling  V.  Todd,  114. 
Doyle,  In  re,  114. 
Doyle  V.  Rolwing,  200. 
Dozier  v.  Dozier,  85. 
Drake  v.  Crane,  20,  81. 
Drake  v.  Curtis,   71. 
Dryden  v.  Kellogg,  175. 
Dudley  v.   Davenport,   442. 
Dugan  V.  Hollins,  49. 
Duhring  v.  Duhring,  396,  433. 


CASES  CITED 
[The  figures  refer  to  pages] 


385 


Duke  V.  Brandt,  433,  434. 
Dullard  v.  Hardy,  280,  33G. 
Dunu'v  V.  SclioeflU'r,  85. 
Duucau  V.  Crook,  41)4,  474. 
Duncan's  Adm'r  v.  Duncan,  245. 
Dunn  V.  German-American  Bank, 

;;!>.  201.  202,  408.  411. 
Durbin,  Ex  parte,  115. 
Dutcher  v.   Hill,  525,  527,  535. 
Duty's  Estate,  In  re,  G5,  72,  42G. 
Dyer  v.  Brannock,  353,  430. 
Dyer  v.  Carr's  Ex'r,  112. 

E 

Eans'    Adm'r   v.   Exchange   Bank 

of  .TelTcrson  City.  245. 
Easley  v.   Bone,  528. 
Easton  v.  Courtwrijiht,  402. 
Eaton    V.    Walsh,    209,    '2m,    341, 

3!»7. 
Ejiton's  Adm'r  v.  Perry,  531. 
Eddie  v.  Parke's  Ex'r,  73. 
Edmonds  v.  Crenshaw,  414. 
Edmonson  v.  Phillips,  300. 
Edmouston  v.  Wilson,  175. 
Educatiimal    Ass'n    of    Christian 

Churches  v.  Hitchcock.  494. 
Edwards  v.  Haverstick.  310. 
Edwards  v.  Smith,  147. 
Egger  V.  Egger,  103,  427,  429,  434, 

435,  441. 
Eisiminger  v.  Stanton,  205. 
Elliott  V.  Kemp,  169. 
Elliott  V.  Moore,  393. 
Elliott's  Estate,   In  re,   284,   343, 

351. 
Ellis  V.  Ellis.  30.  213. 
Ellis  V.  Jones.  108. 
EJlis  V.  Metropolitan   St.   R.    Co., 

251. 
Mis  V.  Missouri  Pac.  Ry.  Co.,  39. 
Elstroth  V.   Dickmeyer,  377. 
Elstroth  V.  Young.  91,  382. 
Ely    V.   Ownby,   359. 
Emmons  v.  Gordon.  65,  70.  71,  101, 

127.  128,  144.  150,  151.  161,  165. 

294,  310,  ■•565.  366. 
Empire  Paving  &  Construction  Co. 

V.    Prather's  Adm'r,  284. 
Ensworth  v.  Curd.  109.  111. 
Erhart  v.  Dietrich,  263,  261. 


Ervin  v.  St.  Tx)uis,  I.  M.  &  S.  R. 
Co.,  253. 

Ess  V.  Griliith,  258. 

Estes,  In  re.  Estate  of,  147.   l.'ij. 

Esther  v.  Burke,  184. 

Euueau  v.  Itieger,  99. 

Evans  v.   Snyder,  318,  3P.>. 

Evans  v.  Wilder,  242.  25."'). 

Evans-Snyder-Buell  Co.  v.  Tur- 
ner, 195. 

Ewiiig  V.  Ewing,  103,  438. 

Ewing  V.  Parrish.  .39.''>. 

Ewing  V.  Shannahan,  190. 

Ewing  V.  Taylor,  273,  274. 

Excndine  v.  Morris,  474,  487. 

Eyermann  v.  Piron,  258. 


Fahy  v.  Gordon,  19.5. 

Farmers'  Bank  of  Frankfort  v. 
Gallaher,  188. 

Farmers'  Sav.  Bank  of  Marshall 
V.  Burgin,  228,  229,  272,  273, 
275,  375. 

Farrar  v.  Dean.  311. 

Farra   v.  Quigley,  449. 

Farrell's  Adm"r  v.  Brennan's 
Adm'x,  62. 

Farris  v.  Coleman,  443. 

Faulkner  v.  Faulkner,  416. 

Fellows  V.  Wise.  302. 

Fenderson  v.  Missouri  Tie  &  Tim- 
ber Co.,  65. 

Ferguson  v.  Bell's  Adm'r,  302. 

Ferguson  v.  Gentry,  2,  216. 

Ferguson's  Estate.  In  re,  30. 

Ferneau   v.   Whitford.   496. 

Fidelity  &  Deposit  Co.  v.  Cren- 
shaw, 554. 

Field  V.  Schiefifelin,  480. 

Fielder  v.  Rose,  163. 

Fiuley  v.  Schlueter,  98,  101. 

Finney  v.  State,  to  Use  of  Estiss. 
269,  505. 

Finney  v.  Watkins.  184. 

First  Baptist  Church  v.  Rnl>ber- 
son,  65,  109.  284. 

First  Nat.  Bank  of  Ft.  Scutt  v. 
Simpson,  202. 

Fischer  v.  Simon.  486. 

Fish  v.  Ilowland,  342. 


586 


Fisher  V.  Dixon,  185. 

Fisher  v.  Keith  ley,  49. 

Fitzgerald  v.  Smith,  131. 

Fitzpatrick   v.    Stevens,  275,   27S. 

Fleming  v.  Bale,  4S7. 

Flick  V.   Sehenk,  426. 

Flick's  E-state,   In  re,  131,  426. 

Flood  V.  Growney,  364. 

Fogg    V.    School    District    of    Se- 

dalia,  143. 
Foley  V.  Boulware,  233,  329,  442. 
Foley  V.  Harrison,  201,  202. 
Folger  V.  Heidel,  381,  505. 
Fontaine    v.    Boatmen's    Savings 

Institution,  434. 
Foote  V.  Clark,  394. 
Foote  V.  Sanders,  87,  173,  295. 
Ford,  In  re,  517. 
Ford  V.  Dyer,  191. 
Forest  v.  Rogers,  98. 
Forrester  v.  Moore,  100. 
Fosburgh  v.  Rogers,  349,   538. 
Fosdick  V.  Sturges,  42. 
Foster  v.  Kenrick,  418,  423. 
Foster  v.  Pollard,  169. 
Foteaux  v.  Lepage,  477. 
Fox  V.  Phelps,  86. 
Frame  v.  Humphreys,  85. 
Francisco  v.  Wingfield,  127,  392. 
Freeland  v,  Williamson,  100. 
Freeland  v.  Wilson,  .343. 
Freeman  v.  MofEtt,  96. 
Frost  V.  Bedford,  531. 
Frost  V.  Winston,  502,  515. 
Fry  V.  Fry,  264. 
Frye  v.  Kimball,  152. 
Fuchs  v.  Fuchs,  36,  264. 
Fudge  V.  Durn,  239,  377,  415. 
Fulbright  v.  Perry  County,  8,  61, 

62,  76,  77. 
Fulkerson  v.  Thornton,  259. 
Fuller  V.  Yates,  339. 


G 


Gabriel  v.  Mullen,  198. 
Gaines  v.  Fender,  80,  295. 
Gainey  v.  Sexton's  Adm'r,  268. 
Gallup,  Appeal  of,  5.54. 
Gamache  v.  Gambs,  77. 
Gamble  v.  Gibson,   170,  172,  242, 
247,  292,  376,  377,  416. 


CASES  CITED 

[The  figures  refer  tx)  pages] 

Gamble  v.  Hamilton,  161. 
Gammon  v.  Lafayette  County,  123. 
Gannon  v.  Albright,  20,  83,  85. 
Gannon  v.  Pauk.  84,  93. 
Gantt  V.  Mechin,  298,  300. 
Garbut  v.  Bowling,  441. 
Gardner  v.  Gardner,  15. 
Garesche  v.  Levering  Inv.  Co.,  99, 

101,  102,  294,  330. 
Garesche  v.  Lewis,  228. 
Garland  v.  Smith,  14. 
Garner  v.  Jones,  91. 
Garner  v.  Tucker,  328,  .392 
Garnett  v.  Carson,  109. 
Garrett  v.  Bicknell,  298. 
Garrett  v.  Garrett,  100. 
Garrick  v.  Lord  Camden,  90. 
Garrison  v.  Lyle,  469,  472,  498. 
Garroutte  v.  White,  187. 
Garth  v.  Caldwell,  175,  177. 
Garth  v.  Garth,  20,  78,  80,  8L 
Garton  v.  Botts,  .390,  514. 
Gartside  v.  Pahlman,  201,  202. 
Garvin's  Adm'r   v.    Williams,    21, 

22,  73,  77,  94,  477.  478. 
Gates  V.  Clavadetscher,  2.5.5. 
Gates  V,   Seibert,  21,  87,  88,  349, 

353. 
Gaven  v.  Allen,  70,  71,  85,  87. 
Gay  V.  Gillilan,  14. 
Gay  V.  Murphy,  144. 
Gentry  v.  Field,  310. 
Gentry  v.  Gentry,  215,  362. 
George    v.     Dawson's     Guardian, 

147. 
George  v.  Williamson,  110,  169. 
Gewe  v.  Hanszen,  273. 
Gibony  v.  Foster,  9. 
Gibson  v.  Mozier,  228. 
Gibson  v.  Vaughan,  108,  268,  273, 

274. 
Gibson  v.  Zimmerman,  91. 
Giesing  v.  Schowengerdt,  107. 
Giles'  Heirs  v.  Giles'  Ex'rs.  46. 
Gilkeson  v.  Missouri  Pac.  R.  Co., 

179,  248,  249. 
Gillet  v.  Camp,  .346. 
Gimbel  v.  Pegners,  190. 
Gist  V.  Rogers,  52. 
Givens  v.  Ott,  293. 
Gladney  v.  Berkley,  30,  447. 
Glaholm  v.  Rountree,  196. 


CASES  CITED 
[The  figures  refer  to  pages] 


687 


CJIasner  v.   Frederick,  187. 

Glen  V.  Fisher,  'A42. 

Glenn  v.  Gunn,  riO,  210,  21."],  216, 

330,  340,  .340. 
Gleini  V.  Hunt,  2S3. 
Glover,  In  re.  Estate  of,  lOS,  111, 

127,  101,  10.5. 
Godard  v.  Conrad,  .39,  201. 
Godman  v.  Gordon,  347. 
Godnian  v.  Simmons,  9.3,  94. 
Goode  V.  Lewis,  451. 
Goodfellow  V.  Shannon.  9,  76. 
Goodman  v.  Gridith,  390. 
Goodright  v.  (ilazier,  42. 
Good  Samaritan  Ilosjutal  v.  Mis- 

sis.sippi  Trust  Co.,  73. 
Goodson  V.  Goodson,  395,  .398,  402, 

403. 
Gordon  v.  Burris,   14,  73,  77,  88, 

91. 
Gordon  v.  Fans,  108,  111,  219. 
Gore  V.  Riley,  458. 
Gould  V.  Crow,  431,  442. 
Governor  of  Missouri,  to  T'se  of 

inn,  V.  Chouteau,  421. 
Grace  v.  Terry,  79,  80,  295. 
Grady  v.  McCorkle,  434. 
Gragg  V.  Gragg.  442,  451,  453. 
Graham  v.  King,  101. 
Graham  v.  O'Fallon,  25,  61. 
Grand  Lodge  A.  O.  V.  W.  v.  Dist- 

er,  138,   168,   193,  217. 
Grandstaff  v.   Brown,  329. 
Grant  v.  Hathaway,  172,  187,  292. 
Graves  v.  Pierce,  183. 
Gray  v.  Wabash  K.  Co.,  251. 
Grayson  v.  Weddle,  127,  313,  319, 

325. 
Green  v.  Green,  352. 
Green  v.  Hussey,  257,  376. 
Green  v.  Sutton,  84. 
Green  v.  Tittman,  408,  411, 
Green  v.  Weaver,  346. 
Green  County,  to  Use  of  Sims.  v. 

Wilhite,  143. 
Green  Tree  Brewing  Co.  v.  Dold, 

99. 
Greeuabaum  v.  Elliott,  228,  269. 
Greene  v.  Holt.  318,  319.  326. 
Green's  Adm'r  v.  Virdon,  402. 
Greenwell  v.  Heritage.  .334. 
Greftet  v.  Willmau,  20,  SS. 


Gregory  v.  Cowgill,  20,  So. 
Gregory  v.   McCormlck,  151,   243, 

367. 
Gregory  v.  Menefee.  370,  399,  402. 
Griesel  v.  Jones,  120,  139,  147. 
Grillith  v.  Canning,  105,  348,  434, 

4.39. 
(Jriliith  V.  Fischli,  216. 
Grimes  v.  Portman,  447. 
Grimes  v.  Reynolds,  274. 
(irimes'  Estate,  In  re,  465. 
(Jrimm  v.  Tittman,  24,  25,  131. 
(iriswold  V.  Chandler,  2.33. 
Grlswold  V.  .Tohnson,  208. 
(iriswold  V.  Mattix,  210. 
(Jross  V.  I>ange,  434. 
Gross  V.  Watts,  247. 
Grow  V.  Dobbins,  393. 
Guitar  v.  Gordon,  .33. 
Gunby  v.  Brown,  312. 
Gupton  V.  Gupton,  .36. 
(iuy  V.  Mayes,  S.3. 
Gwinn  v.  Williams,  493. 

H 

Hach  V.  Rollins,  24. 

Ilaeussler  v.    Missouri    Iron    Co., 

84. 
Haggard  v.  Atlantic  &  P.  R.  Co., 

108. 
Haile  v.  Hill,  64,  71. 
Ilalbert  v.  Ilalbert,  174. 
Hale  V.  Tokelove,  52. 
Halferty  v.  Scearce,  441. 
Hall    V.    Audrain    County    Court 

426,  533. 
Hall  V.  Farmers'     &     Merchants' 

Bank,  111,  172,  242,  310. 
Hall  V.  Hall,  100,  350. 
Hall  V.  HarrLson,  245. 
Hall  V.  Smith,   30,   103,   .3.39,  340, 

348. 
Hall  V.  Stephens,  90,  91. 
Halsey  v.  Meinrath.  548. 
Hamburger  v.  Rinkel.  10,  77. 
Ilamer  v.  Cook,  109,  110,  113. 
Hamilton  v.  Crowe,  61. 
Hamilton  v.  Lewis,  95,  112. 
Hammond  v.  Hammond,  84. 
Hannnons  v.  Renfrow,  108,  284. 
Hand  v.  Motter,  298,  209. 


588 


CASES   CITED 
[The  figures  refer  to  pages] 


Hanley  v.  Holton.  220,  222. 
Hans  V.  Holler,  14,  72.  73. 
Hansborger  v.  Pacific  R.  Co.,  108. 
Hanson  v.  Hanson.  295. 
Hanson  v.  Towle,   169. 
Harbison  v.  .Tames.  85,  87. 
Harbison  v.  Swan,  79. 
Hardy  v.  Atkinson,  453,  455. 
Harsadine  v.  Gibbons,    194,    395, 

398. 
Hargadine  v.  Pulte,  34. 
Harness  v.  Green's  Adm'r,  268. 
Harney  v.  Donohoe.  7,  297. 
Harney  v.  Scott,  420. 
Harris  v.  Anderson,    68. 
Harris  v.  Cook.    95. 
Harris  v.  Fly,  342. 
Harris  v.  Hays,  73,  77. 
Harris  v.  Ross,  302. 
Harris  Banking  Co.  v.  Miller,  97, 

98. 
Hart  V.  Giles,  442. 
Hart  V.  Leete,  133,  184,  199. 
Hartman's  Estate,  In  re,  554. 
Harvey    v.    Sullens'    Heirs,    8, 

12,  21,  76. 
Harvy  v.  Chouteau,  4,  68. 
Harwood  v.  Larramore,  288. 
Harwood  v.  Tracy,  98. 
Hasenritter  v.     Hasenritter, 

70,   104,  340. 
Haskell  v.  Farrar,  157. 
Hastings   v.    Myers'    Adm'r,    200, 

214. 
Hatcher  v.  Hatcher,  22. 
Haven  v.  Foster,  52,  53. 
Havens  v.  Van  Den  Burgh,  47. 
Hawes  v.  Humphrey,  49. 
Hawkins  v.  Cunningham,  416. 
Hawkins  v.  Ridenhour,  228. 
Hawkins  &  Co.  v.  Quinette,  402. 
Hawley  v.  James,  339. 
Hayder  v.  IMaher,  265. 
Hayes  v.  Fry,  208. 
Hayes  v.  Miller,  529,  531. 
Haynes  v.  Carpenter,    153,  205. 
Hazelett  v.  Woodruff,  96. 
Hazel  V.  Hagan,  87. 
Headlee  v.  Cloud,   247,    408,    409, 

411. 
Headrick  v.  Yount,  329. 
Heady  v.  Crouse,  491. 


Healey  v.  Simpson,  538,  540,  541. 
Hegberg  v.  St.   Louis  &  S.  F.  R. 

Co.,  253. 
Hegney  v.  Head,  22. 
Heidenheimer  v.  Wilson,  178. 
Heil  v.  Heil,  98,  100. 
Heller  v.  Leisse,  238. 
Hellmann    v.    Wellenkamp,    401, 

402. 
Helm  V.  Van  Vleet,  244. 
Hendley  v.  Globe  Refinery  Co.,  62. 
Hendren  v.  Colgin,  133. 
Hendricks    v.    St.    Louis    Transit 

Co.,  283. 
Henry  v.  McKerlie,  486,  518. 
Heni-y  v.  State,  to  use  of  Russell, 

143. 
Hensinger  v.  Dyer,  13. 
Hensley's  Allowance,  In  re,  271. 
Hepburn  v.    Hepburn,   341. 
Herndon  v.  Herndon"s  Adm'r,  347. 
Hesche's  Estate,  In  re,  112. 
Hewitt's  Will,  In  re,  23. 
Hiatt  V.  Williams,  110,  264. 
9,    Hickey  v.  Dallmeyer,  241,  244. 
Hicks  V.  Chouteau,  145. 
Higginbotham   v.   Thomas,   494. 
Hildenbrandt  v.  Wolff,  102. 
Hiler  v.  Cox,  205,  213. 
Hilgert  v.  Levin,  195. 
Hill  V.  Alexander,  240. 
Hill  V.  Boyd,  12. 
Hill  V.  Evans,  105,  214. 
Hill  V.  Ground,  400. 
Hill  V.  Rich  Hill  Mining  Co.,  99. 
Hill's  Estate,  In  re,  125,  409. 
Hillman  v.  Allen,  100. 
Hines  v.  Ament,  182. 
Ilisaw  V.  Sigler,  258. 
Hitch  v.  Stonebraker,  98,  294. 
Ilobbs  V.  Beavers,  232. 
Hockaday  v.  Lynn,  94,  349,  538. 
Hockensmith  v.  Slusher,  33,  91. 
Hoehn    v.    Struttmann,    203,    219, 

259. 
Hoffman's  Estate,  In  re,  553. 
Hofman  v.  Grand  Lodge,  Brother- 
hood   of    Locomotive    Firemen, 

193. 
Hogan  V.  Hinchey,  2.''>.  55,  65,  131. 
Ilollingsworth     v.     Jeffries,     135, 

130,  406. 


30, 


CASES  CITED 
[The  figures  refer  to  pages] 


Ilollmann  v.  Lange,  2r.{). 

Ildliiios   V.    Ilolloiuan.   CO. 

Ildlinos  V.  KiiiiK,  44.'*. 

Ilolton  V.  CVxhran,  9,  75. 

Homestead   Cases,  446. 

Hook  V.  Dyer,   11)0. 

Hoover  v.  Mis.souri  I'ac.  Ry.  Co., 

123. 
Hope  V.  Blair,  107. 
Horine  v.  Horine,  508. 
Horiisey  v.  Casey,  4.38. 
Hostctter  v.  Hake,  416. 
Houck  V.  (^ross,  804. 
Houts  V.   McCIuney,  12.",,  266. 
Howard  v.   Strode.  .309. 
Howe  V.  Wilson,  97. 
Howell    V.    Jump,    147,    311,    328, 

3S5,  434. 
Iloyt  V.  Davis,  442. 
Hoyt  V.  Oliver.  441. 
Hubbell  V.  East  Cambridge  Five 

Cents    Sav.    Rank.    184. 
Hudson  V.  Wrigbt,  100. 
Huetteman  v.  Viesselmann,  99. 
Huffman's  Estate,  In  re,  111,  218, 

219,  220,  222. 
Hufschmidt  v.  Gross,  452. 
Hushes  v.  Burri-ss,  05,  151. 
Hughes  V.  McDivitt,  328. 
Hughes  V.  Ilader,  9,  24. 
Hull  V.  Voorhis,  170. 
Hume  V.  Hopkins,  61,  90,  259. 
Humphrey  v.  Kasson,  200. 
Humphrey  v.  Merritt,  177.  178. 
Hundley  v.  Farris,  .390,  401. 
Hunt  V.  Mullanphy,   ISl. 
Hunt  V.  Searcy,  525. 
Hunt  V.  Thompson,  431,  442. 
Hunter  v.  Kansas    City    Safe    & 

Deposit   Bank,   531. 
Hunter  v.  Patterson,  84,  86,  93. 
Hurst  V.  Von  de  Veld,  20,  31,  34, 

79. 
Hurt  V.  Cook.  1.34,  198,  200. 
Hurt  V.  St.  Ixjuis,  I.  M.  &  S.  Ry. 

Co.,  02. 
Huss  V.  Culver,  6. 
Hutchinson   v.    Shelley,   314,   316, 

317.  318. 
Huttou's  Estate,  In  re,  508. 


I 

il   &   St. 


)89 


.T.  Ry.  Co., 


Iba  V.  Ilaiinil 

108. 
I.  M.  &  N.  P.  R.  Co.  V.  Scheuck, 

421. 
Irvine  v.  Ix'yh,  393,  394. 
Isherwood  v.  Payne,  91. 
Ives   V.    Kimlin,    87. 
Ivie  y.  Ewiug,  108,  IK),  111. 


J 


.Tackson  v, 
Jackson  v 


Holloway,  51. 
Jacksou,  61. 
Jackson   v.    I.ittell,   81,  83. 
Jackson  v.  Magruder,  319,  334. 
Jackson  v.  I'otter,  51. 
Jacobs  V.  Jacobs,  240,  378. 
Jacobs  V.  Maloney,   138. 
James  v.  Dixon,  14.5,  146,  231,  397, 

402,  405. 
James  v.  Groff,  100. 
Jamison  v.  Hay,  93,   109,  337. 
Jamison  v.  Wickliara,  286. 
Jamison  v.  Zausch,  444. 
Jarboe  v.  Hey,  84. 
Jarboe's  Estate,   In  re,   254,  255, 

274,  280,   282,  284. 
Jarvis  v.  Russick,  311. 
Jefferson  County  v.  Cowan,  108 
Jeffreson  v.  Morton,  .394. 
Jeffrie  v.  Robideaux,  147. 
Jeffries  v.  Ferguson,  286. 
Jenkins    v.    Covenant    Life    Ins. 

Co.,  6. 
Jenkins  v.  Morrow,  108,  110,  111, 

275,  278,  280,  286. 
.lennings  v.  Gallamore,   91. 
Jennison  v.  Hapgood,  266,  377. 
Jewett  V.  Smith,  169. 

J.  H.  North   Furniture  &  Carpet 

Co.  V.  Davis,  195. 
Jillett  V.  Union  Nat.  Bank,  335. 
Jilz.  Ex  parte,  113. 
Johnson,  In  re,  113. 
Johnson  v.  Antriken,  351. 
Johnson  v.  Beazley,  lOS,  130,  147, 

320.  325,  328. 
Johnson  v.   Detrick,   107. 
Johnson  v.  Johnson,  219,  284. 


590 


CASES   CITED 

[The  figures  refer  to  pages] 


Johnson  v.  Johnson's  Adm'r,  353. 
Johnson  v.  Jones,  255,  343,  3S3. 
Johnson    v.    Payne    &    Williams' 

Bank,  481,  482. 
Johnston  v.  Griest,  448. 
Johnston's  Estate,  In  re,  239. 
Jones  V.  Bunker,  390. 
Jones  V.  Carter,  326. 
Hartley,  50. 
Manly,     319,     325,     326, 


Jones  V. 
Jones  V. 

443. 
Jones  V. 
Jones  V. 


Suedecor,  244. 

"Waters,  85. 
Jones  V.  Yore,  359. 
Jourden  v.  Meier,   64,    65. 
Judson  V.  Bennett,  280,  379. 
Judson  V.  Walker,  479. 
Julian  V.  Abbott,    239, 

415,  421. 
Julian  V.  Wrightsman, 

K 


378,    389, 
370,    39G. 


Kaes  V.  Gross,  .32. 
Kahn's  Plstate,  In  re,  401. 
Kaime  v.  Harty,  1G9,  330. 
Kane  v.  Kane's  Adm'r,  102. 
Kavanaugh   v.   Shaughnessy,   284. 
Keele  v.  Keele,  290. 
Keene  v.  Wyatt,  311. 
Keeney  v.  McVoy,  348,  302,  440. 
Keet  &  Roundtree  Dry  Goods  Co. 

V.  Gideon,  102. 
Keith  V.  Keith,  68. 
Kemp  V.  Foster,  102. 
Kendall  v.  Powers,  447. 
Kennedy's  Adm'r  v.  Duncan,  445. 
Kennedy's     Heirs     v.     Kennedy's 

Heirs,  232. 
Kennerly  v.  Shepley,  286,  .330. 
Kenrick  v.  Cole,  61,  72,  112,  426. 
Kenrick  v.  Huff,  236,  237. 
Kent  V.  Rogers,  255. 
Keyes  v.  Hill,  4.52. 
Keyl  V.  Westerhaus,  201. 
Keys  V.  Key's  E.state,  275. 
Kidd  V.  Guibar,  506.  508. 
Kiernan    v.    Robertson,    344,    347, 

356. 
Kimberlin  v.  Gordon,  448,  450. 
Kincheloe    v.    Gorman's    Adm'rs, 

277,  278. 


King  V.  Gilson,  9,  77. 
King  V.  Isley,  100. 
King  V.  King,  150,  442,  474. 
Kirtley  v.  Morris,  195. 
Kischman  v.  Scott,  12,  15,  22. 
Kitchell  V,  Burgwin,  446. 
Klenke  v.  Koeltze,  197,  198. 
Knapp  V.  St.  Louis  Trust  Co.,  9, 

73. 
Knight  V.  Newkirk,  309. 
Knost  V.  Knost,    85. 
Knowles  v.  Bullene  &  Co..  274. 
Knox    County    Savings    Bank    v. 

Cottey,  397. 
Koenig    v.    Union    Depot    R.    Co., 

529,  531. 
Kows  V.  Mowery,  421. 
Krechter  v.  Grofe,  80.  82. 
Kuhn  V,  Germania  Life  Ins.  Co., 

259. 


La  Beaume  v.  Hempstead.  269. 

Lacey  v.  Giboney,  183,  184. 

Lackland  v.   Stevenson.  103. 

Lackland  v.  Walker,  99. 

Lacy  V.  Pixler,  302. 

Lacy  V.  Williams,  469. 

Ladd  V.  Stephens,  343,  351. 

Ladd  V.  Torsee,  112. 

Lake  v.  Meier,  297. 

Lally  V.  Cantwell,  545. 

Lamar  v.  Belcher,  105,  214,  270. 

Lamb  v.  Brolaski,  255. 

Lamb   v.    Helm,   65,    73,    77,   127, 

129.  136,  16S. 
Lancaster     v.     Washington     Life 

Ins.  Co.,  147. 
Laudis  v.  Eppstein,  464. 
Landree  v.  Warren,  172. 
I^andrum  v.  Bank,  127. 
Lane  v.  Clark,  147. 
Laney  v.  Garbee,  107,  525. 
Langham  v.  Darby,  393. 
Lappin  v.  Mumford,  236,  238. 
Larimore  v.  Bobb,  161. 
Lasher  v.  Lasher,  339. 
Lass  V.  Eisleben,  172.  247. 
Lass  V.  Sternberg,  .309. 
Laughlin  v.  McDonald.  285. 
Laumeier  v.  Gehner,  94. 
Lawrence  v.  Heister,  209. 


CASES  CITED 
[The  figures  refer  to  pages] 


591 


Lawrence  v.  Wri;:ht,  Kit). 
Lay  V.  Mechanics'  r.aiik.  2()9. 
Lazonby  v.   Siuithey,  loS,  215. 
Leake  v.  King.  447. 
Leakey  v.  Maupin,  1.33. 
Lear's  Estate,  In  re,  350. 
Leavy  v.  Cook,  442. 
Le  Bourgeoise  v.  McNamara,  359. 
Lee  V.  Missouri  I'ac.  K.  Co.,  243. 
Leeper  v.  Lyon,  110,  305. 
Leeper   v.   Taylor,   228,   258,  408, 

409,  411. 
Leete  v.  State  Bank  of  St.  Louis, 

134,  198,  200. 
Lehnhoff  v.  Theine,  87. 
Lemmons   v.   Reynolds,  92. 
Lenk    Wine   Co.   v.    Caspari,   277, 

278,  279. 
Lenow  v.  Fones,  185. 
Lenox  v.  Harrison,  514. 
Leonard  v.  Sparks,  107,  108. 
Lessing  v.  Vertrees,  170,  255,  347. 
Level  V.  Farris,  286. 
TiCvins  V.  Stevens.  96. 
Lewellyn  v.  Lewellyn,  153. 
Lewis   V.    Carson,    144,    164,   205, 

419. 
Lewis  V.  Castello,  216. 
Lewis  V.  City  of  St.  Louis,  69,  71. 
Lewis  V.  McCabe,  285,  408,  411. 
Lewis  V.  Pitman,  85. 
Lewis  V.  "Williams,  390,  514. 
Lich  V.  Lich,  88,  89,  434,  436. 
Lietman's  Estate  v.  Lietman,  341. 
Lilly  V.  Meuke,  32,  103,  104,  128, 

354,  355. 
Ldlly  V.  Tobbein,  75,  76. 
Lincoln  Trust  Co.  v.  Wolff,  156. 
Lindsey  v.  Stephens.  23,  42. 
Linker  v.  Smith,  199. 
Lisles  V.   Huffman.  352. 
List  V.  Rodney,  244. 
Lister  v.  Lister,  193. 
Little  V.  Knox,  415. 
Littlefield  v.  Lemley,  195. 
Lloyd's  Estate,  In  re.  173. 
Loan  V.  Gregg,  181,  182. 
Locke  V.  McPherson.  19S.  200. 
Lockridge  v.  Mace.  21,  87. 
Loessing  v.  Loessing.  346. 
Logan  v.  Phillipps,  442. 


Long  v.  Joplin  Mining  &  Smelting 

Co.,  127. 
rx>ng  V.  Martin,  6. 
Long  V.  Timms,  83. 
Ix)oney  v.  Browning,  426. 
Looney's  Estate,  In  re,  469. 
Loos  V.  John  Hancock  Mut.  Life 

Ins.  Co.,  193. 
Ijord  Walpole  v.  Lord  Orford,  52. 
Luring  v.   Groomer,  96,  448,  449. 
I>orts  V.  W^ash,  26,  60. 
Louder  v.  Hart,  263,  264. 
Loveren  v.  Lamprey,  3. 
Luce  V.  Dimock,  53. 
Lupton  V.  Lupton,  342. 
Lynch's  Estate,  In  re,  220. 
Lynde  v.  Williams,  347. 
Lyne  v.  Marcus,  14. 
Lynn  v.  Hockaday,  .541. 
Lyons  v.  Murray,  401. 

M 

McAIister  v.  Novcnger,  431,  442. 
McAllister  v.  Williams,  393,  394. 
McCabe  v.    Lewis,   147,    152,   408, 

410. 
McCarty  v.  Frazer,  205,  207,  209, 

250,  341. 
McCarty  v.  Hall,  243. 
McCarty  v.  Roundtree,  464. 
McCauslin  v.   ^McGuire,  65. 
McClain  v.  Abshire,  198. 
McClanahan  v.   West,  392. 
McClerry  v.  Matson,  .370. 
McClelland  v.  McClelland,  397. 
McCloon  V.  Beattie,  108. 
McClung  V.  Turner,  431. 
McClure  v.    Farthing,   478. 
McCord's  Adm'r  v.  McCord,  202. 
McCoy  V.  Broderick,  2.54. 
McCoy  V.  Farmer,  365. 
McCracken  v.  Hall,  184. 
McCracken  v.  McCaslin,  139,  168, 

170,  204. 
McCrary  v.  Menteer,  426. 
McCune's  Estate,  In  re,  288,  335, 

382.  389,  426. 
McDonald  v.  McDonald.  100,  351. 
McDonald   v.   Walton.  269. 
McElvain  v.  McElvaiu,  540. 


592 


CASES  CITED 
[The  figures  refer  to  pages] 


McFadin  v.  Catron,  9,  15,  21,  31, 

62,  76,  77. 
McFaul  V.  Haley,  274,  275. 
McGee  v.  Porter,  24. 
McGlothlin  v.  Ilemry,  258. 
McGregor-Noe    Hardware    Co.    v. 

Horn,  100. 
aicGuire  v.  Allen,  134,  199. 
Mcllvaine  v.   Smith,  84. 
McKee  v.  Allen,  97,  100. 
McKee  v.  Spiro,   99. 
McKee  v.  Stuckey,  32,  103,  104. 
McKee  v.  Thomas,  494. 
McKenzie  v.  Donuell,  534. 
McKim  V.  Aulbach,  414. 
McKinney  v.  Bellows,    254. 
McKinney  v.  Hensley,    22,    518. 
McKinney's  Adm'r  v.  Davis,  286. 
McKinzie  v.  Hill,  269. 
McKissock  v.  Groom,  9. 
McLaughlin       v.       McLaughlin's 

Adm'r,  444. 
McLean  v.  McAllister,  397. 
]\Ic^^illan  V.  Farrow,  80. 
McMillan    v.    Wacker,    138,    140, 

167,   1C8. 
McMorrow  v.  Dowell,  263,  264. 
McNeeley's  Estate  v.  Imel,  426. 
McPhersou's  Adm'r  v.  McPherson, 

368,  369. 
McPike  V.  McPlke,  167,  171,  172, 
204,  242,  310.  365,  307,  377,  378. 
McQuitty    V.    Wilhite,    172,    173, 

292,  300,  310. 
McReynold's  Ex'r  v.  Gentry,  444. 
McVey  V.  iSIcVey,  320,  325,  487. 
Macey  v.  Stark,  129,  140,  148,  159, 

314,  319,  409,  411,  514. 
Maddox  v.  Maddox,  8,  15,  31,  55, 

62,  77. 
Madison  County  Bank  v.  Suman's 

Adm'r,  268. 
Maguer  v.  Ryan,  125,  126. 
Maguire  v.  Moore,  20,  87,  88,  90. 
Mahan  v.  Ross,  255. 
Ma  honey  v.  Nevins,  138. 
Mahon's  Adm'r  v.  Sawyer,  282. 
Makepeace  v.  Lukens,  493. 
Mann  v.  Balfour,  44,  46,  47. 
Mann  v.  Carter,  554. 
Marheineke  v.  Grothaus,  463,  475, 
498. 


Mark    v.    State   ex   rel.    Bowlers, 

447. 
Marks  v.  Marks,  52. 
Markwell  v.  :\Iarkwell,  233,  441. 
Marquis,  In  re,  525,  527. 
Marshall  v.  Hartzfelt,  49. 
Marshall  v.  Meyers,  288,  335,  389. 
Marshall  v.  Wabash  R.  Co.,  352, 

464. 
Marston  v.  Yaites,  486. 
Martien  v.  Norris,  104. 
Martin  v.  Bowderu,  15. 
Martin    v.    Jones,    347,    348,    434, 

436,  438,  439. 
Martin  v.  Lachasse,  92,  93,  95,  96, 

337. 
Martin  v.  La  Master,  290. 
Martin  v.  Trail,   197,  431. 
Mason  v.  Bank  of  Commerce,  99. 
Matheny  v.  Stewart,  96. 
Matthews    v.    Missouri    Pac.    Ry. 

Co.,  195. 
Matney    v.    Graham,    65,    68,    71, 

438,    441. 
May  V.  May,  514. 
Mayberry    v.    McClurg,    286,   317, 

335. 
Mayburry  v.  Brien,  4.34. 
Mays  V.  Mays,  24,  60,  61. 
Maze  V.  Baird,  22. 
Mead  v.  Jennings,  110. 
Meeks  v.  Clear  Jack  Min.  Co.,  172, 

187. 
Megraw  v.  Woods,  198. 
Meier  v.  Buchter,  9. 
Meier  v.  Meier,  61. 
Meiners  v.  Meiners,  19,  80,  81. 
Melton  V.  Fitch,  318,  319,  431. 
Melvin  ex  rel.  McVey  v.   Evans, 

262. 
Merchant  v.  Merchant,  202. 
Merchants'      Bank      v.      Ward's 

Adm'r,_  278,  279. 
Meredith  v.  Meredith,  13. 
Meriwether  v.  Block,  153. 
Merritt's    Estate   v.   Merritt,   170, 

204,  240,  311,  377,  41.5. 
Merry  v.  Fremon,  110,  169. 
Mersman  v.  :Mersman,  80. 
Metcalf  V.  Larned,  393. 
Metz  V.  Wright,  80. 
Meyer  v.  Campbell,  268. 


CASES  CITED 
[The  figures  refer  to  pages] 


593 


Meyer  Bros.  Drug  Co.   v.   Bybee, 

447. 
Meyer  Bros.  Drug  Co.  v.  Self,  195. 
Miclmel  v.  City  of  St.  Louis,  107, 

108. 
Michael  v.  Locke,  ~>-'.K  ."•:>1. 
Mickey's  Ijessee  v.  Wiiitiode,  185. 
Midland    Nat.    Bank    of    Kansas 

City  V.  Brightwell,  9!). 
Miles  V.  Boydeu,  52,  53. 
Miller  v.  Bledsoe,  394. 
Miller  V.  Crabbe,  195. 

V.  Ensuiinger,  86,  93. 

V.  Holt,  3,  22. 

V.  Hoover,    151,    243,    244, 


Miller 
Miller 
Miller 

367. 
Miller 
Miller 
Miller 
Miller 
Miller 
Miller 
Miller 

269, 


V.  Iron  County,  111. 
V.  Janney's  Ex'r,   289. 

Lehman,  42. 

Major,  ;!90,  392,  514. 

Miller,    14. 

Quick,  5. 

Woodward,      109,      110, 


V. 
V. 
V. 
V. 
V. 

393. 


Mills  V.  Mills,  30. 

Miltenberger  v.  Milteuberger,  22, 

25,  131. 
Minor  v.  Cardwell,  368. 
.Missouri.  K.  &  E.  Ry.  Co.  v.  Hoe- 

reth,  109. 
Missouri   Lead,   Mining  &  Smelt- 
ing Co.  V.  Keiuhard,  188. 
Mitchell  V.  Bliss.  325. 
Mitchell  V.  Martin,  241,   280. 
Mitchell  V.   St.  Louis,  I.   M.  &  S. 

Ry.  Co.,  ISO. 
Mitchell  V.  Williams,  514. 
Mobley  v.  Nave,  322. 
Mockbee's  Adm'r  v.  Gardner,  232. 
Moeckel  v.  Heim,  134. 
Montague  v.  Crane,  84. 
Montgomery  v.  Montgomery,  6. 
Montgomery  County    v.    Auchley, 

240. 
Montgomery    County    v.    Gupton, 

536. 
Moore  v.  McNulty,  73. 
Moore  v.  Moore,  352. 
Moore  v.  State  ex  rel.   Atkinson, 

146,  414,  415. 
Moore  v.  Wilkerson,  450. 
Moore  v.  Wingate,  320,  326. 

Kel.Mo.I'.G.— 38 


M(jran  v.  Moran,  538. 
Morau  v.  Stewart,  441,  538. 
Morau's   Estate,    In  re,   349,   352, 

538. 
Morehouse  v.  Ware,  161,  163,  166, 

417. 
.Morgan,  In  re,  114. 
Morgan  v.  Gibson,  228,  269. 
Morgan  v.  Oronogo     Circle     Mln. 

Co.,  250. 
.Morris  v.  Barnes,  26.']. 
.Morris  v.  Lane,  117,  121. 
Morris  v.  Morris,  527,  533. 
Morris  v.  Stei)henson,   293. 
Morrow  v.  Morrow,  101. 
Morrow  v.  Saline  County  Com'rs, 

101. 
Morton  v.  Hatch,  ,307. 
Morton  v.  Heidorn,  24,  60,  76. 
Moser  v.  Lower,  255. 
Moss  V.  Craft,  369. 
Mount  V.  Valle.'  313. 
.Mount  Olive  &  St.  L,  Coal  Co.  V. 

Slevin's  Estate,  110,  111. 
Mouriquaud  v.  Hart,  448. 
Movers  v.  White,  52,  53. 
Mowry  v.  Adams,  244. 
Mowry  v.  Norman,  55,  76. 
Mowser  v.  Mowser,  214. 
:\iueller  v.  Bueuger,  80.  87. 
Mueller  v.  Grunker,  390. 
Muldrow  V.  White,  85. 
.Mullanphy    v.    St.    Louis    County 

Court,  136,  147,  153,  426. 
Muller     V.     St.     Louis     Hospital 

Ass'n,  77. 
.Muloek  V.  Mulock,  98,  100. 
Muuday  v.  Leeper,  224,  2S6,  411. 
.Mundy  v,  Bryan.  268,  273. 
Murdock  v.  Dalby,  447. 
Murdock  v.  Holland's  Heirs,  392. 
.Murphy  v.  Carliu,  83,  86. 
.Murphy  v.  De  France,  514. 
Murphy  v.  Murphy,  26,  513. 
.Murray  v.  Oliver,  53. 
.Murray  v.  I'urdy,  325. 
.Murray  v.  Roberts,  390. 
.Musick  V.  Beebe,  391. 
.Musick  V.  Kansas   City,   S.   &   M. 

Ry.    Co.,    107,   180. 
Mutual  Sav.  Inst.  v.  Enslin.  402. 
.Myers  v.  Myers,  257,  376,  378,  508. 


59i 


CASES  -CITED 
[The  figures  refer  to  pages] 
j»j  Orrick  v.  Valiey,  403. 

Osborne  &  Co.  v.  Evans,  450. 
Otte  V.  Becton,  505. 
Overall  v.  Ellis,  198. 
Overby  v.  Mears  Min.  Co.,  250. 
Overton  v.  Davy's  Fx'r,  112. 
Overton  v.  Johnson,  313,  331. 
Owen  v.  Eaton,  20,  21. 
Owen  V.  Ellis,  295. 
Owens  V.  Link.  153. 


241, 


Napton  V.  Leaton,  49. 
Nat  V.  Coons,  70,  71,  79. 
Natch  V.  Rollins,  432. 
Naylor  v.  Goduian,  93. 
Naylor's   Adm'r    v.    Moffatt, 

243,  365,  367,  368,  369. 
Nelson  v.  Barnett,   161,  390,  514. 
Nelson  v.  Nelson,  351. 
Nelson  v.  Russell's     Adm'r,     288, 

289. 
Newland  v.  Baker,  329. 
New     Madrid     Banking     Co.     v. 

Brown,  448,  451,  454. 
Newman  v.  Newman,  102,  100. 
Newton  v.  Cox,  384. 
Newton  v.  Newton,  30,  432. 
Newton  v.  Rebenack,  99. 
Nicholas  v.  Kelley,  250,  253,  254. 
Nichols  V.  Boswell,  20,  80,  82,  S3, 

92. 
Nichols  V.  Reyburu,  108,  111. 
Niemeyer  v.  Niemeyer,  6. 
Noble  V.   Cain,  233. 
Noble  V.  Enos,  5. 
Noe  V.  Kern,  20,  68. 
Nofsinger,  In  re,  114. 
North  V.  Priest,  381. 
North  Atchison  Bank  v.  Gay,  144. 
North  Furniture  &  Carpet  Co.  v. 

Davis,  195. 
Northcutt  V.  Northcutt,  24. 
Norton  v.  Paxton,  8,  15,  73. 
Norton  v.  Thompson,  148,  510. 
Null  V.  Howell,  433. 


O'Bannon's  Estate,  In  re,  377. 
O'Brien,  Ex  parte,  108. 
O'Brien  v.  Ash,  3,  4,  444. 
O'Connell  v.  Missouri  Pac.  R.  Co., 

251. 
O'Day  V.  O'Day,  80,  340. 
Odenwaelder  v.  Schorr,  42,  47,  60, 

76. 
Oehmen  v.  Portmann,  464. 
Oldham  v.  Trimble,  80,  143,  420, 

514. 
Orchard     v.     Wright-Dalton-P.ell 

Anchor  Store  Co.,  170,  174,  185, 

186,  235,  334,  433,  443. 
Ormiston  v.  Trumbo,  474,  528. 


Owens  V. 
Owensby 


Sinklear,  76. 
V.  Chewning, 


100. 


Co., 


165, 


P 

Padgett  V.  Smith,  153. 
Pa  pin  V.  Piednoir,  21. 
Parker  v.  Zeisler,  107. 
Parson  v.  Lyman,  366,  367. 
Parsons   v.    Egyptian    Levee 

282. 
Patchen  v.  Durrett,  108. 
Patee  v.  Mowry,  .330. 
Pattee  v.  Thomas,  480,  485. 
Patterson    v.   Booth,  98,    99, 

390,  477. 
Patton  V.  Furthmier,  478. 
Paulus  V.  Besch,  80. 
Payne  v.  Dotson,  442. 
Payne  v.  Fraley,  449. 
Payne  v.  King,  500,  501,  502. 
Payne  v.  Masek,  359,  479. 
Payne  v.  Payne,  105,  440. 
I'earce  v.  Calhoun,  109,  111,  394. 
Pearson  v.  Haydel,  111,  501. 
Pearson  v.  Murray,  322. 
Pell  v.  Farquar,  393. 
Pemberton  v.  Pemberton,  103. 
Penter  v.  Roberts,  264. 
People's  Sav.  Bank  v.  Hoppe,  241. 
Perkins  v.  Quigley,  447. 
Perry  v.  Perryman,  442. 
Perry  v.  Strawbridge,  444. 
Perry's   Adm'rs    v.    Roberts, 

305. 
Peter  v, 
Peter  v, 
Peter  v, 


110, 


Beverly,  415. 

Byrne,  79. 

King,  278. 
Peters  v.  Carr,  81. 
Peters  v.  Holliday,  208,  332,  334. 
Pettitt  V.  Black,  65. 
Peugnet  v.  Berthold,  84. 
Pfeiffer  v.  Suss,  272,  280,  382. 


Porter 
Post  V 


V. 


Potter 
Pound  V. 
Pounds  \ 
Powell  V 
Powell  V 


CASES  CITED 
[The  figures  refer  to  pages] 

Philips  V.  Ward,  286,  42G. 
Phillips  V.  Presson,  44.'!. 
Pliillips  V.  Stewart,  173,  295. 
Picot  V.  Bates,  514. 
Pieot  V.  O'Fallon.  425. 
Pldfock  V.  Buffam.  217,  346. 
Pinney  v.  Fanclier,  .'',42. 
Pinter  v.  Koherts,  2('>^. 
Pitkin  V.  Mott,  134.  202. 
Plumb  V.  Cooper,  100. 
Poland  V.  Vesper,  311. 
Polk's  Adni'r  v.  Allen,  2G9. 
Pond  V.  Kimball,  396. 
Poole  V.  Tolleson,  168. 
Porter  v.  .Tones,  76. 
V.  AVoods,  98. 
Ca  vender,   1S9. 
Potter  V.  Adams'  Ex'rs,  148. 
Potter  V.  Passett.  1.51. 
Todd.  427. 
Cassity.  .343. 
Dale,  .34. 
Hatch,  97. 

Hurt,  1G2.  166,  239,  240 
Powell  V.  Powell.  201. 
Powell's  Estate,  In  re.  452. 
Powers  V.  Blakey's  Adm'rs,  108. 
Pratt  V.  Menkens,  255. 
Pratt  V.  Saline  Valley  R.  Co.,  84, 

85. 
Presbury  v.  Hull.  16. 
Prescott  V.   Dairfee.   366. 
Prewitt  V.  Martin.  170. 
Prewitt  V.  Prewitt,    100. 
Price  V.  Hunt,  396. 
Price  V.  McCause,  272. 
Price  V.  Springfield      Real-Estate 

Ass'n,  316,  514. 
Price  V.  Taylor,  3. 
Price  V.  Woodford,  103.  438. 
Price's  Adni'r  v.  Boswell,  52. 
Priestly  v.  .Tohnson,  182. 
Prince  v.  Hazolton,  38. 
Progress  Press  Brick  &  Machine 
Co.  V.  Gratiot  Brick  &  Quarry 
Co.,  181,  182. 
Prosser  v.  Hardesty.  87. 
Pullis  V.  Pullis,  160.  403. 
Purl's  Estate,  In  re,  168,  169. 


SOD 


Quail  V.  Lomas,  452. 


R 

Ramsey   v.   Thompson    Mfg.    Co., 

188. 
Randal   v.   Elder.  447. 
Rankin  v.  Rankin,  77. 
Rannt'lls  v.  Gerner,  103,  531,  5.32. 
Ranney  v.  Thomas,  285. 
Rate] iff  V.  RatclifTe,  68. 
Ratliff  V.  Magee,    1.59,    226,    316, 

320,  393,  513. 
Ray  V.  Doughty.  392. 
Ray  V.  Loper.  .3.50. 
Ray  V.  Virgin.  2.32,  233. 
Reaunie  v.  Chambers,  431. 
Records  v.  Fields,  90. 
Rector,     etc.,     of     Mt.     Calvary 

Church  V.  Albers,  98.  100. 
Redman  v.  Adams,  426,  428. 
Reed  v.  Crissey,  274. 
Reed  v.  I.iine,  94. 
Reed  v.  Morrison,  434. 
Reed  V.  Painter,  6.  100,  198. 
Reed  v.  Wilson.  .529,  531. 
Register  v.  Hensley,  32,  451,  453. 
Reid  V.  Porter,  105. 
Reinders  v.   Koppelmann,   20,  85. 

89,  90,  352,  538. 
Reppstein  v.   St.   Louis  Mut.  Ins. 

Co.,  469,  472. 
Reyburn  v.  Mitchell,  190. 
Reynolds'  Appeal,  101. 
Rhoades  v.  Fuller,  531. 
Rhodes  v.  Bell.  322,  326. 
Rhorer  v.  Brockhage,  4.52. 
Rice  V.  Shipley,  134,  198. 
Richards  v.  Griggs,  347. 
Richardson    v.    Busch,    147,    243, 

408. 
Richardson  v.  Cole.  1.39. 
Richardson  v.  Frederitze,  362. 
Richardson  v.  Lewis,  369. 
Richardson  v.  Lowry.    198. 
Richardsou  v.  Palmer,  110. 
Richardson  v.  Richardson,    502. 
Rirhardson  v.   Smart,  62. 
Richter   v.   Bohnsack.  444. 
Rickenbaugh.   In  re.  295. 
Riddick  v.  Walsh.  441. 
Ridenour    Baker    Grocery    Co.    v. 

Monroe.  446.  447. 


596 


CASES  CITED 
[The  figures  refer  to  pages] 


Kiesenberg's    Estate.    In    re,    91, 

554. 
Riggin   V.   Board   of  Trustees  of 
Westminster  College.   9,  10,  31. 
Riggins  V.  McClellan,  20,  85. 
Riggs  V.  Myers,  SO. 
Riley  v.  Sherwood,  9.  15,  76. 
Riley  v.  Vaughn.  200. 
Riley's  Adm'r  v.  McCord's  Adm'r, 

130,  147. 
Ring  V.  Jamison.  258. 
Ringquist  v.  Young,  20,  88. 
Riser  V.  Snoddy,  147. 
Ritchey  v.  Withers,  288,  289,  290, 

335,  381. 
Rittenhouse  v.  Ammerman,  416. 
Ro  Bards  v.  Brown.  20.  81.  82. 
Ro  Bards  v.  Lamb,  128,  165,  392. 
Robbins  v.   Boulware,   316. 
Robert  v.  Casey.  477.  487. 
Roberts  v.  Bartlett,  9,  73. 
Roberts  v.  Crume,  80,  84. 
Roberts  v.  Malin,   .342. 
Roberts  v.  Nelson,  282. 
Roberts  v.  Thomason,  316,  319. 
Roberts  v.  Walker,  133,  198. 
Robinson  v.  Schly  &  Cooper,  3. 
Robnett  v.  Ashlock,  22. 
Rocheport  Bank  v.  Doak,  112. 
Rockwell  V.  Saunders,  169. 
Rodney  v.  Landau,  69. 
Rodney  v.  McLaughlin,  59,  68,  69 

Rogers  v.  Clemmuns.  312. 
Rogers  v.  Crow,  181,  183. 
Rogers  v.  Lively,  73,  127. 

Rogers  v.  Johnson,  159,  312. 

Rogers  V.  Marsh,  311,  451,  453. 

Rogers  V.  Moyes,  452. 

Rohrer  v.  Oder,  443. 

Rolf  V.  Timmermeister,  359. 

Rollins  V.  Marsh,  515. 

Roosevelt's  Estate,  In  re,  5.53. 

Rose  V.  McHose's  Ex'rs,  112. 

Rose  V.  Mays,  263. 

Rose  V.  Perkins,   300. 

Rose  V.  Smith,  451. 

Ross  V.  Alleman,  2.54,  285. 

Ross  V.  Julian,  110,  298,  305,  .3.34. 

Roth  V.  Rauschenbusch,     20,     21, 
84. 

Rothwell  V.   Jamison,   19,   55,  64, 
68,  80,  92. 


Kottmann  v.  Schmucker,  514. 
Rougtell  V.  Strode,  125. 
Rouse  V.  Caton,  451. 
Rowden  v.  Brown,  147,  326. 
Rozelle  v.  Harmon,  126,  162,  394. 
Rubey  v.  Barnett,  84. 
RuCe  V.  Doyle,  222,  426. 
Rugle  V.  Webster.  328,  417. 
Rule  V.  Maupin,  12. 
Rumsey  v.  Otis,  360.  362. 
Runkle  V.  Gates,  43. 
Russell  V.  Eubanks,  20,  85. 
Russell  V.  Lennon,   396. 
Russell  v.  Russell,  90. 
Rutledge  v.  Simpson's  Adm'r,  268. 
Ryans  v.  Boogher,  228,  288. 


St.   Louis   Hospital  Ass'n  v.  Wil- 
liams' Adm'r,  23. 
St.  Louis  Nat.  Bank  v.  Field.  172. 

187. 
St.  Louis  Nat.  Bank  v.  Hoffman, 

59. 
St.    Louis   Radiator   Mfg.    Co.    v. 

Carroll,  181,  182. 
St.   L.  &  S.  F.  R.  Co.  V.  Lowder, 

107. 
S.  Albert  Grocer  Co.  v.  Painter's 

Estate,  274. 
Sal  lee  v.  Arnold,  1,33. 
Sanders  v.  North  P^nd  Building  & 

Loan  Ass'n,  59. 
Sanford  v.  Foss,  254. 
Sanitarium  v.  McCune,  80,  81,  82. 
Sanfjuinett  v.  Webster,  6. 
Sappington  v.  Lenz,  108. 
Sappington  v.  Sappington    School 

Fund  Trustees,  97. 
Sarazin  v.  Union  R.  Co.,  349. 
Sauer  v.   Griffin,  50. 
Sauner    v.    Pha^nix    Ins.    Co.    of 

Brooklyn,  193. 
Savage  v.  Meriam,  244. 
Sayler  v.  Nodaway  County,  118. 
Sayre    v.    Trustees    of    Princeton 

T'niversity,  9. 
Scales  V.  Scales,  431. 
Scarritt,  In  re,  464. 
Schaff  V.  Peters,  46,  73. 
Schawacker   v.   McLaughlin,   123. 


CASES  CITED 
[The  figures  refer  to  pages] 


507 


Schee  V.  Wiseman,  174,  185. 
Schell  V.  Ix-laiul,  108. 
Schierbaum  v.  Schemme,  9,  13,  50, 

77. 
Schmieding  v.   Doelluer,   189. 
Sclimucker  v.  Steidiuann,  427. 
Schniucker's  E.state  v.  Ilcel,  97. 
Schneider  v.  Koester,  35. 
Schoeneich  v.  Keed,  288. 
Schoenelch  v.  Field.  79,  84. 
Schorr  v.  Carter,  85,  87. 
Schorr  v.  Etling,  32,  340. 
Schulter's  Adiii'r  v.  Bockwinkle's 

Adm'r,  109.  304. 
Schwatlcen  v.  Daudt,  339. 
Scott  V.  Crews,  127,  164.  106,  172. 

374,  375,  421. 
Scott    V.    Governor    of    Missouri, 

420. 
Scott  V,  Royston,  307. 
Scott's  Estate,  In  re,  1.16. 
Scudder  v.   Ames,   194,   240,   284, 

402. 
Seabolt,  In  re,  453. 
See  V.  See,  215. 
Seehorn  v.  American  Nat.   Bank, 

102. 
Seek  V.  Haynes,  453. 
Sehr  V.  Lindeuiann,  8,  10,  12,  15, 

55,  70,  77. 
Seibert  v.  Hatcher,  15. 
Seilert  v.  McAnally.  170,  449,  479. 
Seligman  v.  Rogers,  277. 
Settle  V.  Shafer,  81,  84. 
Sevier  v.  Woodson,  81,  83. 
Seymour,   Ex  parte.  .392. 
Seymour  v.   Butler,   342. 
Seymour  v.  Seymour.  143,  166. 
Shamleffer  v.  Council  Grove  Peer- 
less Mill  Co.,  494. 
Shannon  v.  Carter,  264. 
Sharkey  v.  McDermott,  30,  540. 
Sharp  V.  Kansas  City  Cable  Ry. 

Co.,  62. 
Shaw  V.  Nicholay,  311. 
Sheetz  v.  Kirtley,  390,  508. 
Sheldon  v.  Rice's  Estate,  310. 
Shepperd  v.  Fisher.  21,  81.  87. 
Sherwood  v.  Baker,  108,  326. 
Sherwood's    Adm'r    v.    Hill,    169, 

210.  420. 
Shindler  v.  Givens,  449. 


Shoemaker  v.  Brown,  391. 
Shore's  Adnj'x  v.  Coons,  245,  390. 
Showies  v.  Freeman,  145. 
Sl.royer  v.  Nickell.  91. 
Shuey  v.  Latta,  101. 
Shumate  v.  Bailey,  20,  83,  80,  87. 
Sickles  v.  Mc.Manus,  420. 
Siclert  v.  McAnally.  479. 
Siemers  v.  Kleeburg,  305. 
Sikemeier  v.  Galvin,  94. 
Simmons  v.  Cabaune,  20,  21,  80, 

82,  84. 
Simmons  Medicine  Co.  v.  Ziegen- 

hein,  5.54. 
Simpson  v.  Scroggins,  452. 
Sims  V.  Gray,  325. 
Sims'  Adm'r  v.  Kelsay,  180,  242. 
Sitton  V.  Shipp,  2.58. 
Skelly  V.  Veerkamp,  135,  152. 
Skinner  v.  Ellington,  102. 
Skinner  v.  Henderson,  255. 
Skouten  v.  Wood,  451,  452. 
Slaughter  v.  Davenport,  202. 
Slauter  v.  Chenowith,  245. 
Small  V.  Field.  21.  84.  86. 
Smallwood  v.   Lafayette  County, 

255,  488. 
Smiley  v.  Cockrell,  208. 
Smith  V.  Aude.  187. 
Smith  V.  Black,  172,  173,  325. 
Smith  V.  Denny,  244,  514. 
Smith  V.  Estes,  54,  55,  64. 
Smith  V.  Eureka   Bank,  385,  391, 

421,  514. 
Smith  V.  Gregory,  171. 
Smith  V.  Hanger,  390. 
Smith  V.  Hutchinson,  86. 
Smith  V.  Myers,  263. 
Smith  V.  Sims,  286,  335,  336,  421. 
Smith  V.  Smith,  100. 
Smith  V.  Smith's  Estate,  427. 

Stephens.  362,  4;!1,  443. 
White,  199.  349. 
Young,  466,  469. 
Smith's  Ex'r  v.  Benton,  145. 
Sneathen  v.  Sneathen,  39. 
Snell  V.  Harrison.  .-KK). 
Snodgrass  v.  Copple.  450. 
Snuffer  v.  Howerton,  54,  55,  64. 
Snyder.  In  re.  114. 
Snyder  v.  Free.  264. 
Snyder  v.  Parker.  187. 


Smith  V 
Smith  V, 
Smith  V 


598 


Soltim  V.  Soltan,  5. 

Souimer   v.    Frank  1  in    Bank,   A51, 

243,  367. 
Soue  V.  Palmer,  191. 
Soulard's   Estate,    In    re,   36,    73, 

74,  OS,  128,  259,  377. 
Southern  Electrical  Supply  Co.  v. 

Rolla    Electric   Liglit   &   Power 

Co.,  182. 
South  .Jophn  Land  Co.  v.  Case,  99. 
Southworth    v.     Southworth,    10, 

56.  61. 
Sparhawk  v.  Buell's  Adm'r,  415. 
Sparks  v.  Dorrell,  340,  347,  348. 
Sparks  v.  Dowell,  436,  438. 
Speck  V.  Wohlien,  325. 
Spoonemore  v.  Cables,  43,  46. 
Spraddling  v.  Pipkin,  .366,  .368. 
Spratt  V.  Lawson,  103,  340,  435. 
Springfield    Engine    &    Thresher 

Co.  V.  Donovan,  13. 
Springfield  Grocer  Co.  v.  Walton, 

378. 
Springmeyer  v.   Sovereign  Camp, 

Woodmen  of  the  World,  .55. 
Spurlock  V.  Burnett,  444. 
Stagg  V.  Green,  126,  129,  141,  146, 

168,  204. 
Stagg   V.    Linnenfelser,    129,   168, 

288,  335. 
Standiford  v.  Standiford,  39. 
Stanley    v.    Bircher"s    Ex'r,    179, 

262. 
State  V.  Allen,  518. 
State  V.  Broustine.  62. 
State  V.  Grigsby,    343. 
State  V.  Holman,  407. 
State  V.  .Tones,  .';81,  .531,  .532. 
State  V.  McElhauey,    112. 
State  V.  McGonigle,  144. 
State  V.  Martin,   110,  209, 
State  V.  Metzger,  108. 
State  V.  Miilsaps,  113. 
State  V.  Schneider,  108. 
State  V.  Slevin,  143,  477,  502,506. 
State  V.  Soper,  62. 
State  V.  Stark,  .59. 
State  V.  Thompson,  .59. 
State  ex  rel. — 

Adams  v,  Johnson,  420. 
Alderson  v.  Moehlenkamp,  73. 


CASES   CITED 
[The  figures  refer  to  pages] 

State  ex  rel. — 


AuU  V.  Shortridge,  108. 

Bates  V.  Shaw,  514. 

Bell   V.  Nolan,  120,  156,  407, 

411. 
Berry  v.  McGrath,  449. 
Billingsley  v.  Spencer,  396. 
Board    of    Education    of    St. 

Louis  V.  Nast,  112. 
Bonghton  v.  Tubb,  100. 
Brebaugh  v.  Bolte,  467. 
Brouse  v.  Burnes,  96.  '.)oi. 
Burns  v.  Romjue,  136. 
Cameron  v.  Shannon,  128. 
Cardwell  v.  Stuart,  284. 
Catron  v.  Ennis,  411. 
Chesser  v.  Clark,  494. 
Christy  v.  Donegan,  386.  .399. 
Collins  v.  DuUe,  127,  166. 
Crane  v.  Heinrichs,  127,  163, 

165,  166. 
Deems  v.  Holtcamp,  308. 
Distin  V,  Ensign,  114. 
Drach  v.  Cheaney,  407. 
Druliner  v.   Clark,   477. 
Enterprise  Mill.  Co.  v.  Brown, 

161. 
Fagan  v.  Grigsby,  143. 
Fath  V.  Henderson,  553. 
Fester  v.  Staed,  464. 
P^isher  v.  Rodecker,  145. 
Flick    V.    Reddish,    131,    1-32, 

426. 
Frost  V.  Creusbauer,  145,  384, 

385,  390,  421. 
Garth    v.    Switzler,   553,   554, 

556,  560. 
Gilbert  v.  Eldridge,  255. 
Gordon  v.  Kennedy,  385,  411, 

516. 
Green  v.  Henderson,  354. 
Griggs  V.  Edwards,  2.30. 
Grimm  v.  Manhattan  Rubber 

Mfg.  Co.,  143. 
Grover    v.    Fowler,    131,    147, 

426. 
Guenther  v.  King,  411,  412. 
Hamilton  v.  Guinotte,  72,  73, 

74,   128. 
Hayes  v.  Seaborn.  271. 
Henson  v.  Sheppard,  117. 


CASES   CITED 
[The  figures  refer  to  pages] 


599 


State  ex  rel.— 

Hewitt  V.  Hewitt,  144. 
Hospes    V.    lU-aiuh,   i'.no,   3S5, 

513. 
Houusuui  V.  Moore,  241. 
Howell    Couuty    v.     Fiudley, 

145. 
Hyslop    V.    Bilby,    15G,    403, 

514,  518. 
Jacobs    V.    Elliott,    150,    105, 

482. 
J.    D.    Levey    Clothing    Mfg. 

Co.  V,  Schacldett.  401. 
Johnson  v.  Withrow,  107,  143, 

163,  164,   105,   1<!0. 
Jones  V.  Jones,  170,  355. 
Jones  V.  White,  10.'). 
Kansas  City  Auditorium   Co. 

V.  Allen,  402. 
Karrenbrock     v.     Mississippi 
Valley  Trust  Co.,  161,  267. 
Kiel  V.  Baird,  535. 
Koch  V.  Roeper,  159. 
Langston  v.  Canterbury,  102, 

164. 
Lansston    v.    Zorn,    143,    161, 

162,  163. 
Latimer   v.  Gray,   117. 
Levey    Clothing    Mfg.    Co.    v. 

Shacklett,  401. 
Liggett  V.  Osborn,  366,  422. 
Lionberger  v.  Tolle,  120. 
Longdon  v.    Shelby,  111,  336, 
412,  419,  420,  421,  422,  423. 
McGeever  v.  Shires,  225,  227. 
Meiuzer  v.  Diveling,  449. 
Midgett  v.  Matson,  423. 
Mills  v.  Mast,  409. 
Moore  v.  Sandusky,  145. 
Nichols  V.  Adams,  73. 
O'I'.riant  v.  Keokuk  &  W.  R. 

Co.,  196. 
Patterson  v.  Titnian,  269,  272. 
Patterson    v.    Tittmann,    145, 

228,  269,  482. 
Piuger  V.  Reynolds,  468,  518. 
Pountain    v.    Gray,    127,    159, 
161,  103.  105,  381,  386,  390, 
393,  419.  514. 
Public     Admr     ot      Daviess 
County    V.    Lankford,    381, 
385. 


State  ex  rel. — 

Renick   v.   St  Louis  County 

Court,   108,   110. 
Richardson  v.  James,  384. 
Rice  V.  Cayce,  359. 
Robinson  v.  Smith,  422. 
Rucker    v.    Rucker,    152,   385, 

.390.  421. 
Rut  ledge  v.  Holman,  411. 
Scott  V.  Lichte,  79. 
Scott  V.  Smitli,  107. 
Seely  v.  Huff,  258. 
Shinn    v.    Stafford,   111,   420, 

422,  423. 
Simms  v.  Todd,  426. 
Steers  v.  Taylor,  213. 
Strickland      v.      Strickland's 

Adm'r,  381,  385. 
Townshend   v.    Meagher,   101, 

170,  258,  415,  416. 
Tygard  v.  Elliott.  517. 
Ury  V.  Gans,  123. 
Walker  v.  Dobson,  114. 
Walnut  St.  Ry.  Co.  v.  Neville, 

107. 
Wann    v.    Dickson,    235.    343. 

344. 
Yarnell  v.  Cole  County  Court, 

525.  535. 
Yeoman   v.    Hoshaw,    203. 
Ziegenhein  v.  Tittmann,  229, 
267,  275,  310,  311. 
State,  to  T'se  of— 

Adams  v.  Campbell.  306.  367, 

368.  420. 
Betts  V.  Purdy,  410. 
Blanton's    Adm'r    v.    Hunter, 

127. 
Brent  v.  Grace's  Adm'r,  514, 

518. 
Bur  rough     v.     Farmer,     145, 

140,  166,  415,  421. 
Cardwell  v.  Stuart,  392. 
ColUns  V.  Stephenson,  374. 
Coste  V.  Fulton.  101.  102,  166 
Davis  V.  Maulsby.  2s5. 
Drury  v.  Drury,  loC. 
Edwards  v.  Bartlett.  :'.90. 
Filley  v.  Aebly,  92. 
Gilltreath  v.  Bnnce.  499. 
Glenn  v.  Fields,  150,  157. 


600 


Lem- 


State,  to  Use  of — 

Griffith  V.  Holt,  385,  390,  421, 

422. 
Hempstead  v.  Coste,  422. 
Hermann  v.  Miller,  508. 
Hockaday  v.  Woods,  156. 
Hunter  v.  INIaulsby,  111. 
Jacobs  V.  Hearst,  464. 
Kendrick  v.  Hudson,  255. 
Lewis  V.  Wolff,  407. 
Lovell  V.  Todd,  332,  514. 
Miller's     Adm'r     v.     Bidling- 

maier,  284. 
Minot  V.  Kaime,  367. 
Moore  v.  Price,  146. 
Morrison's  Adm'r  v.  St 

me"s  Adm'r.  420. 
Mueller's  Adm'r  v.  Reinhardt, 

2S4. 
Perry  v.  Towl,  487. 
Pickney  v.  Culbertson,  443. 
Piles  V.  Richardson,  165. 
Ranney  v.  Green,  246. 
Riirland  v.  Porter,  162. 
Renfro's  Adm'rs  v.  Price,  142, 

143. 
Reyburn  v.  Ruggles,  422. 
St.    Louis    Brewing    Ass'u    v. 

Murphy,  196. 
Shields  v.  Flynn,  162. 
Smith    V.    Martin,    483, 

518. 
Taylor  v.  Woods,  402. 
Thornton  v.  Hoster,  508 
Tourville  v.  Roland,  390,  514. 
Wagenmann      v.      Rosswaag, 

159. 

Walsh  V.  Farrar,  422. 
Wolf  V.  Engelke,  466,  505. 
Wolff    V.    Berning,    156,    170, 
385,   390,   421. 
Steele  v.   Steele,  349,  538. 
Stephens    v.    Bernays,    273,    275, 

277,  426. 
Stephens  v.  Stephens,  23. 
Stetson  V.  Bass,  .391. 
Stevens  v.  Larv\ill,  65,  71,  72,  130, 

131,  153,  281,  367,  371,  409. 
Stevens  v.  Oliver,  65,  71,  79. 
Stewart  v.  Caldwell,  290,  317,  335. 
Stewart  v.  Cave,  14B. 
Stewart  v.  Glenn,  258. 


CASES  CITED 
[The  figures  refer  to  pages] 

Stewart  v.  Pettus,  71,  79. 

Stewart  v.  Stewart,  200. 

Stiles  V.  Smith,  228,  269,  279. 

Stinson  v.  Call,  449. 

Stitt  V.  Stitt,  170. 

Stivers  v.  Home,  448. 

Stoepler  v.  Silverberg,  5,  340. 

Stokes  V.  McAllister,  443. 

Stone  V.  Cook,  73. 

Stone  V.  Troll,  263,  264. 

Stong  V.    Wilkson,    144,   390,   420. 

Story  V.  Story,  35,  48,  74. 

Stowe  V.  Banks,  312. 

Stowe  V.  Stowe,  2,  54,  55,  65,  72, 

111. 
Strathmore  v.  Bowes,  52. 
Stratton  v.  McCandless,  110. 
Straub  v.  Simpson.  195,  196. 
Strode  v.   Beall,  .3.52. 
Strouse  v.  Drennan,  325,  487. 
Studebaker    Bros.     Mfg.     Co.    v. 

Montgomery,  416. 
Sturgeon     v.     Schaumburg,     172, 

247,  286,  292,  336. 
Sublett  V.  Nelson,  280,  411. 
Sullivan  v.  Burnett,  7. 
Sullivan  v.  Garesche,  85,  94. 
Sullivan  County  v.  Burgess,  .390. 
Sunderland  v.  Hood,  15. 
Sutherland  v.  Brush,  414,  415. 
Sutter  V.  Lackmann.  174,  185. 
Sutton  V.  Hayden,  36. 
Swain  v.  Mitchell,  486. 
Swan  V.  Thompson,  311. 
Swartz  V.  Nicholson,  277. 
Sweaney  v.   ilallory,  442. 
Swift,  In  re,  555. 


514, 


.513. 


Taft  v.  Stevens,  173. 
Talbot's  Ex'r  v.  Mearns,  234. 
Talbott   V.    Hamill,   85. 
Talmage  v.  Chapel,  245. 
Tapley  v.  McPike,  152. 
Taylor  v.  Bader,  417,  419. 
Taylor  v.  George,   277. 
Taylor  v.  Hite,  101,  .501,  .502. 
Taylor  v.  Hosick,  136,  147. 
Taylor  v.  Hudson,  263,  265. 
Taylor  v.  Hunt,  385,  422. 


Taylor  v.  Kelly,  3. 
Taylor  v.  I'riest,  228. 
Teats  V.  Flanders.  3C. 
Teckeiibrock    v.    McLaughlin,    65, 

7G. 
Teunont  v.  Pruitt,  449. 
Tenny's  Adm'r  v.  Lasley's  Adm'rs, 

22S.  ;i7n. 
Terry  v.  Glover,  3. 
Terry  v.  Wilson,  108. 
Tesson  v.  Newman,  85. 
Teverbauffb  v.  Hawkins,  316,  330. 
Tevls  V.  Tevis.  271. 
Thomas  v.  Black.  .32,  34,  35. 
Thomas  v.  Ilesse,  441. 
Thomas  v.  Stump,  8. 
Thomas    V.    Thomas,    78,    79,    88, 

203. 
Thompson  v.  Chicago,  S.  F.  «&;  C. 

Ry.  Co.,  107. 
Thompson  v.  Dolliver,  196. 
Thompson  v.  Ish,  8.  42. 
Thompson  v.  IMnnell,  329. 
Thomson  v.  Thomson.  20,  SO,  82, 

91.   194. 
Thorp  V.  Miller.  242.  377. 
Throckmorton  v.  Pence,  .329. 
Tibbe  V.  Kamp.  15,  22. 
Tiemann  v.  Molliter,  170,  396,  398. 
Tierman's  Ex'r  v.  Security  Build- 
ing &  Loan  Ass'n,  lOS,  170. 
Tincher  v.  Phillips,  215,  348,  362. 
Tingley  v.  Cowgill,  73,  75,  76. 
Tisdale  v.  Prather.  81,  87. 
Titman  v.  Moore.  454. 
Titterington  v.  Hooker,  111,  129, 

401,  402. 
Tittman  v.  Edwards,  408. 
I'ittman  v.  Green,  381,  482. 
Tittman  v.  Thornton,  68,  151,  243, 

245. 
Todd  V.  James,  139. 
Tole  V.  Hardy,  91,  92.  .342. 
Tolson's    Adm'r    v.    Garner,    529, 

531. 
Tomlinson  v.  Ellison.  202. 
Tonnies  v.  Mclntyre,  .392,  .393. 
Topley  V.  Ogle,  448. 
Townsend  v.  Townsend.  .390. 
Tremmel  v.  Kleiboldt.  84. 
Trent's  Adm'r  v.  Trent,  314. 
Trimble  v.  Moore,  281. 


CASK.S   CITED  601 

[The  figures  refer  to  pages] 

Trustees  of  General  Assembly  of 

Presbyterian  Church  of  the  T'. 

S.  V.  McElhinney,  110,  111,  .301. 

311. 
Tucker,  In  re,  112,  483,  505.  .50«J, 

514. 
Tudor    Iron   Works  v.    Hitt,    175, 

181,  182. 
Turner,  Ex  parte,  114. 
Turner  v.  Anderson,  9. 
Turner  v.  Campbell,  65,  138,  151, 

243,  .346. 
Turner  v.  Hale,  396,  404. 
Turner  v.  Lord,  145. 
Turner  v.  Northcut,  513. 
Turner  v.  Timberlake,  79. 
Tutt  V.  Bayer,  319. 
Tuttle  V.  Robinson.  181. 
Tyard  v.  Hartwoll.  94. 
Tye  V.  Tye,  168,  201,  230. 
Tygard    v.    Falor,    111,    218.    219. 

220.  222,  258. 
Tygard   v.    McComb,   39.   40,   201, 


202. 
Tyler  v. 
Tylor  V. 


Priest.   1.36. 
Cart  Wright,  348. 

u 


Ulrici  V.  Boeckeler,  102. 

Ulrici's   Estate,    In    re,   193,    214. 

270. 
Underwood  v.  Cave,  21. 
Union    Century    Life   Ins.    Co.    v. 

Tillery.  181. 
Union   Trust   Co.    v.    Soderer.   74, 

128. 
United    States    Casualty    Co.    v. 

Kacer,  98. 
Utassy  V.  Giedinghagen,  7. 

V 

Valle  V.  Bryan,  314,  319. 

Valle  V.  Fleming,    298,    314,    325. 

487. 
Valle's  Heirs  v.  Fleming's  Heirs, 

233. 
Van  Bibber  v.  Julian.  165. 
Vanblaricum  v.  Yeo.  24«). 
Van  Cortlandt  v.  Kipp.  .52. 
Vandemark  v.  A^andemark.  376. 
Van  Dyck  v.  Van  Beuren.  97. 


602 


CASES   CITED 
[The  figures  refer  to  pages] 


Van  Llew   v.   Barrett  &   Barrett 

Beverage  Co.,  381,  3S6.  392. 
Van  Ness  v.  Pacard,  184. 
Van  Orden  v.  Van  Orden,  339. 
Van  Pelt  v.  Parry,  433. 
Van  Rensselaer  v.  Witbeck,  00. 
Vaustone  v.  Goodwin,  188. 
Varnon  v.  Varnon,  43,  45,  46,  61. 
Vastine  v.  Diuan,  254. 
Venable  v.  Wabash  West  Ry.  Co., 

129. 
Vermillion  v.  Le  Clare,  410. 
Vermont  Marble  Co.  v.  Ragsdale, 

195. 
Vielliaber  v.  Eyermann,  171. 
Viers  v.  Viers,  100. 
Vitt  V.  Clark,  79. 
Von  Arb  v.  Thomas,  105,  4.33,  436, 

440. 
Von  De  Veld  v.  .Tudy,  10. 
^'on  Phul  V.  Hay,  S3,  94. 
VouUaire  v.  VouUaire,  466. 

w 

Wacker  v.  Wacker,  7. 

Waddell  v.  Waddell,  94. 

Wade  V.  Jones,  44(;. 

Wager  v.  Wager,  109. 

Wagoner      Undertaking      Co.      v. 

.Jones,  2G5,  278. 
Wales  V.  Ilolden,  540. 
Walker  v.  Gay's  Estate,  271. 
Walker's  Adm'r    v.    Deaver,   .393, 

394. 
Walker's  Estate  v.  Walker,  1.36. 
Wall  V.  Hinds,  181. 
Walley  v.  Gentry,  266,  272. 
Wallis  V.  Wallis,  44. 
Walpole  V.  Cholmondeley,  53. 
Walpole  V.  Orford,  53. 
Walsh  V.  Mathews,  85. 
Waltemar     v.     Schnick's    Estate, 

275,  278,  279. 
Walter  v.  Ford,  202,  212,  213. 
Walton  V.  Drumtra,  79,  80. 
Walton  V.  Kendrick,  23,  24. 
Warden  v.  Busbee,  390. 
Warden  v.  Missouri,  K.  &  T.  Ry. 

Co.,  108. 
Warnick  v.  Baker,  188. 
Warren  v.  Carter,  411. 


Warren  v.  Hofer,  498,  499. 

Waterman  v.  Whitney,  43. 

Waters  v.  Herboth,  5. 

Watklns  v.  Holman,  393. 

Watkins  v.  McDonald,  123. 

Watson,  In  re,  109. 

Watson  V.  Alderson,    65,    73,    74, 

77,  78,  79. 
Watson  V.  Sidney  F.  Woody  Print- 
ing Co.,  188. 
Watson  V.  Watson,  19,  87,  438. 
Wead  V.  Gray,  21. 
Weary  v.  Wittmer,  259. 
Weatherford  v.  King,  84. 
Webb  V.  Archibald.  79,  87. 
Webb  V.  Hay  den,  479. 
Weber  v.  Strobel,  15. 
AVeil  V.  Jones,  255,  288,  389. 
Weiland  v.  Weyland,  258. 
Weindel  v.  Weindel,  431. 
Weir  V.  Marley,  114. 

Weiss  V.  Heitkamp,  100. 

Welch  V.  Anderson,  43S. 

Wells    V.     Covenant     Mat.     Ben. 
Ass'n,  531. 

Wells  V.  Wells,  73. 

Welton  V.  Hull,  .334. 

Wernse  v.  McPike.  271,  272,  273, 
274,  275,  277,  289. 

West  V.  McMullen,  5. 

West  V.  West,  19,  42,  43,  44,  47, 
76,  77,  114. 

West  V.  West's    Adm'r,    381,    502, 
508,  514. 

Weston  V.  Hanson,  9. 

Westpheling  v.  Enright,  426. 

Wetherall  v.  Harris,  34. 

Wetzell  V.  Waters,  245,  411. 

Whalen  v.  Cadman,  446. 

Whaley  v.  Whaley,  177,  178,  214. 

White  V.  Henly,  254. 

White  V.  Ingram,  431. 

White  V.  McFarland,  245. 

White  V.  Maxcy,  132. 

White  V.  Spencer,  445. 

Whitehead  v.  Tapp,  446,  447, 

Whitelaw  v.  Rodney,  83. 

Whiteside  v.  Magruder,  96. 

Whiting  V.  Brastow,  184. 

Whitmire  v.  Wright,  185. 

Whittelsey  v.  Brohammer,  50. 

Wickham  v.  Page,  163,  164. 


CASES   CITED 
[The  figures  refer  to  pages] 


GO.'i 


Wiggins  V,  rx)vering's  Adm'r,  2G9. 

Wightniaii  v.  Grand  Lodw,  An- 
cient Order  of  United  Workmen 
of  Missouri,  OL'. 

Wigley  V.  Beaucliaiup,  ;JGL',  4."i8, 
441. 

Williite  V.  Ferry,  51S. 

Wilkerson  v.  Allen,  :',25,  328,  480. 

Willard  v.  Darrali,  :V.],  79,  SS,  80. 

Willet  V.  Brown,  .'JOG,  433. 

Williams  v.  Braden,  187. 

Williams  v.  Courtney,  432.  441. 

Williams  v.  Gerber,  271,  275. 

Williams  v.  Lobban,  293,  294,  295. 

Williams  v.  Peun,  208. 

Williams  v.  I'etticrew's  Heirs,  239, 
381,  3.90,  410. 

Williams  v.   Shackleford.   16. 

Williams  v.  Williams,  220.  293. 
341. 

Williams'  Estate,  In  re,  .349,  350, 
351. 

Williamson  v.  Williamson,  342. 

Willis  V.  Sproule.  109. 

Wilson,  In  re,  490. 

WiLson  V.  Brown's   Adm'r,    420. 

Wilson  V.  Craig,   442. 

Wilson  V.  Fosket,  33. 

Wilson  V.  Gregory,  228,  209. 

Wilson  V,  Jackson,  9. 

Wilson  V.  Rousseau.  191. 

Wilson  V.  lUithrauff,  170,  209. 
219,  250.   341,  417. 

Wilson  V.  Stark,  378. 

Wilson  V.  Wilson,  16S,  109.  295. 

Winfrey  v.  Gallatin,  191. 

Winn  V.  Riley,  134,  178,  198,  200. 

Winningham  v.  Crouch,  247. 

Wisdom  V.  Slianklin,  0,  282,  529, 
531. 

Wise  V.  Loring,  108. 

WMthinton  v.  Withinton,  24,  61. 

Wolf  V.  Brown,  09. 

Wolf  V.  Sun  Ins.  Co.,  243. 

Wolff  V.  Scliaeffer,  144,  156,  157, 
170,  385,   390,  421. 

Wolff  V.  Wohlien,  324.  426. 

Wolfort  V.  Rielly,  370. 

Women's  Christian  Ass'n  v,  Kan- 
sas City,  99. 


Wood,  In  re,  .391,  491,  .503. 

\\()od  V.  Carpenter,   10. 

Wood  V.  Kills,    110. 

Wood  V.  Flanery,   278. 

Wood  V.  Kice,  94. 

Wood  V.  Matthews,  .300. 

Wood  V.   Williams,  1.56,  157. 

Wood's  Estate,  In  re,  314. 

Woods  V.  Boots,  .502. 

Woods  V.  Drake,  .-^2,  33,  .35. 

Woods  V.  State,  to  Use  of  Ralney, 

142,  14.5. 
Woodward  v.  Blanchard,  181. 
Woodward   v.   MiCJaugli,  255. 
Woodward  v.  Murray,  447. 
Woodw.'ird  V.  ^^'oodward,  197,  198. 
Woodworth    v.    Woodworth,    390, 

.".93,  419,  508. 
V.'o(d  V.   Fleetwood,  84. 
Wooldridge  v.  Draper,  285. 
Worsham  v.  Callison,  4.'i3. 
Wright  V.  Rutgers,  71. 
Wyatt  V,  Woods,  515. 
Wyeth    Hardware   Co.    v.    Beard, 

195. 


108, 


Vocum  V.  Siler.  21,  84,  93. 
Yoeman  v.  Younger,  514. 
Young  V.  Boardman,  32,  10." 

437. 
Young  V.  Dowling,  487. 
Young   V.  Downey,  159,  226,  316, 

317,  320. 
Y'oung  V.  I.^drick,  113. 
Young  V.  Ridenbaugh,  8,  73. 
Young  V.  Robinson,  81,  93,  95. 
Young  V.  St.  Louis,  I.  M.  &  S.  R. 

Co.,  253. 
Young  V.  Thrasher,  170,  209,  256, 

341,  443. 
Y'oung  V.  Walker,  .■>29. 
Young  V.  Wells,  241. 


Zeibold  v,  Foster,  107.  108. 
Zeideman  v.  Molasky.  97. 
ZoU  V.  Soper.  110. 
Zook  V.  Welty,  81,  434,  436,  438. 


INDEX 

[the    FIGUKKS    REIEH   TO    SECTIONS] 


ABANDONMENT, 

Of  liomostead,  443. 
Of  children,  500-503. 

ABATEMENT, 

Of  action  on  death  of  either  party  or  revival,  240,  245. 
Of  legacies,  321,  322. 

ABDUCTION, 

See  Habeas  Corpus. 

ABSENCE, 

Of  executor,  administrator  to  be  appointed,  when.  135. 

Of  administrator,  to  appoint  agent,  283. 

Of  administrator  or  executor  from  state,   letters  revoked,  160, 

161. 
Of  seven  years,  death  presumed,  359. 

AB'SENTEB, 

Estate  of.  may  be  administered,  when,  359. 

ABSOLUTE   PROPERTY, 

Of  \^^dow.  206,   208,  211,  212.  214. 
Of  widower  and  minor  children,  21.3. 
Of  estate  not  exceeding,  no  letters  granted,  147,  214. 
Of  effect  of  election   of  widow  to  take  one-half  estate  of  de- 
ceased husband,  424. 

ABSTRACT, 

Of  demands  by  executor  or  administrator,  263. 

ACCOUNTING, 

See  Settlement. 
When  executor  or  administrator  dies,  166,  167. 
On  resignation  or  removal,   16S. 
Of  surviving  partner  administering,  396. 
By  executor  or  ailmiuistrator  of  deceased  partner,  399. 
By  guardian  and  turator,  annual,  486,  487. 
Final,  49:1,  494. 
By  guardian  of  insane,  etc.,  518,  519. 

ACCOUNT, 

See  Settiement. 
By  executor  and  administrator,   may   be  compelled,   when   and 

how,  166,  168. 
Clerk    of  probate  court  to    provide   books   and   enter   accounts 
therein.  366. 

Kel.Mo.P.G.-  (605) 


606  INDEX 

[The  figures  refer  to  sections] 

ACCOUNT— Continued, 

Semi-annual,  when  to  be  made,  3G6. 
Nature  of  semi-annual  account,  370,  372,  374. 
Final  accounts,  when  and  how  made,  379,  380. 
May  be  opened,  how  and  when,  383,  385. 
To  contain  list  of  exhibited  demands.  370. 
Appeal  will  lie  from,  in  what  cases,  417. 

Annual  account  of  guardian,  486,  487;    final  by  guardian,  493, 
494. 

ACKNOWLEDGMENT, 

Form  of,  to  deed  by  executor  or  administrator,  310. 

Same,  to  deed  by  guardian,  472. 

Form  of,  to  declaration  of  election  by  widow,  424. 

Of  receipt  of  ward,  49G. 

Of  executor's  or  administrator's  bond,  152. 

ACTIONS, 

What  survive  and  what  abate,  240.  245,  257. 

How  prosecuted,  in  what  court,  2.39. 

By  foreign  administrator,  241. 

Accruing  after  death  of  deceased.  240. 

Accruing  before  death  of  deceased,  242. 

Commenced  by  deceased,  to  be  prosecuted,  when,  245. 

For  death  of  deceased  by  wrongful  act,  246. 

Allegation  of  representative  capacity,  243. 

To  collect  rents,  244. 

Set-off,  when  allowed,  248,  273. 

Before  justice,  2.50. 

Competency  of  witnesses  in  suits  by  or  against  administrators, 

etc.,  255. 
By  child  or  relative  of  deceased,  for  services,  259. 
By  creditor  to  establish  demand,  264. 
Trial,  how  conducted,  274. 
Judgment,  how  rendered,  278,  280. 
To  be  prosecuted  and  defended  by  guardian,  462. 
By  and  against  insane  ward,  513. 
By  master  and  apprentice,  535,  539. 
Appeals  allowed  from  probate  court,  when,  417,  419. 
By  ijublic  administrator,  405. 

ADMINISTRATION, 

See  Administrators. 
Letters  of,  granted  by  what  court,  138. 
How  obtained,  148-158. 
In  what  courts,  139. 
To  whom  granted,  140-144. 
Sole,  preferred  to  joint,  145. 
Of  estates  of  absentees,  359. 
Of  estates  of  minors,  when  and  when  not,  157. 
Of  estate  of  non-resident,  360-305. 
Primary  distinguished  from  ancillary,  241,  300. 
No  administration,  when,  147,  214,  3.34. 


INDEX  GOT 

[The  figures  refer  to  sections] 

ADMINISTRATORS, 

See  Executors. 

Ari'OINTMENT  AND   Ql-ALIFICATION, 

Capacity   to  administer,   140,   141. 
Priority  of  rij^ht  to  apitointmeut,  142. 
Citation  to  administer,  form  of,  140. 
Renunciation  of  ri^lit,  form  of,  146. 
Proceedings  to  obtain  letters,  14S. 
Aflidavit  of  intestacy,  form  of,  14S. 

Affidavit  of  administrator  with  will  annexed  to  properly  ad- 
minister estate,  149. 
Grant  of  letters  to  administrator  with   will  annexed,  form 

of  entry,  149. 
Validity  and  form  of  letters.  1.57,  l-'iS. 
Authority  conferred  by  letters,  159. 
Bond  of  administrator,  form  of,  etc.,  150-1.50. 
Bond  taken  by  clerk,  approval  by  court,  154. 
Bond,  how  executed  and  sureties,  153. 
Notice  of  letters,  219. 
Notice,  where  heirs  unknown,  221. 
Publication,  proof  of,  how  made,  223. 
Duties  of  Administrator, 
In  General, 

Inventory,  when  and  how  made,  204-208. 
Additional  inventory.  210. 
Appraisement,   when  and  how  made,  209. 
Statement  of  accounts   by.  .300-385. 
Semi-annual  settlements,  how  made,  300-375. 
Final  settlement  by.  379. 

Bj%  set  aside,  3N3. 
Notice  of  final  settlement,  how  published,  379. 
Distribution  of  estate,  by,  334-350. 
Refunding  by  distributee  or  legatee,  352. 
As  to  Personal  Property, 

Estate  of  administrator,  in  property  of  deceased,  170- 
203. 
See  Assets. 
Collection  of  debts,  239. 

May  receive  assets  in  other  states,  when,  243. 
May  recover  concealed  or  embezzled  effects,  how,  215- 

218. 
Sale  of  personal  property,  225-236. 

Private  or  public,  232. 
Personal  estate  may  be  reserved  from  sale,  when,  23<>- 

315. 
Assign  notes  and  bonds  to  creditors,  381. 
As  to  lical  Estate, 

May  lease  and  repair  real  estate,  244,  174. 

Sales  of  real  estate,  under  power  contained  in  will,  285- 

287. 
Executory  contract  for  purchase  of  land.  2S9-291. 
Contract  for  sale  of  land,  how  enforced,  292-207. 


608  INDEX 

[The  figures  refer  tx)  sections] 

ADMINISTRATORS— Continued, 

Duties  of  Administrator.  As  to  Real  Estate — Continued, 
Lands  incumbered,  redeemed  or  sold,  299. 
Sale  of  leaseholds,  318. 

Sale  of  real  estate  for  payment  of  debts,  300-317. 
Purchaser  of  real   estate   liable  for  prior  liens,  when, 
316,  317. 
As  to  Demands  against  Estate, 
Demands,  how  classified,  260. 
How  exhibited,  262. 
How  established,  264,  284. 
How  allowed,  277. 

Should  not  be  paid  without  allowance.  272. 
Not  due,  276. 

How  allowed  in  absence  of  administrator,  283. 
Effect  of  allowance,  280-282. 
Allowance,  how  vacated,  284. 
Demands,  paid  in  order  classified,  281,  282. 
Payment  of  debts  and  legacies,  319-333. 
Compromise  demands,  when,  238. 
Allowances  to  Widow,  Widower  and  Children, 

See  Absolute  Property;   Allowance;   Children;  Widow; 
Widower. 
To  widow,  widower  and  minor  children,  as  absolute  prop- 
erty, 206-214,  334. 
Claim  of  child  for  work  after  coming  of  age,  259. 
Allowance  for  support  of  children,  354. 
Actions  by  and  against  Administrators, 
See  Actions. 
To  collect  debts,  239. 
How  prosecuted,  in  what  court,  239. 
Commenced  by  deceased,  to  be  prosecuted  when,  245. 
Set-off,  when  allowed,  248,  278. 
Competency  of  witnesses,  255. 
By  creditor,  to  establish  demand,  264. 
Trial,  how  conducted,  274. 
Judgment,  how  rendered.  278,  280. 
Costs,  how  adjudged,  279. 
Appeals  by,  417. 

Liability  of  administrator  for  waste  and  false  account,  415. 
Actions  against  administrator  for  misconduct,  411,  215-218. 
Suit  on  bond,  414-416. 
Classes  of  Administrators, 

General  and  special,  how  defined,  134,  135. 
De  bonis  non,  135,  158,  220,  167,  169,  168. 
De  son  tort,  133. 
With  will  annexed,  135,  150,  158. 
Public  administrators,  402-407. 
Foreign  administrator,   241,  360-365. 
Termination  of  Authority  to  Adminisxeb, 
Revocation  of  letters,  162. 
Resignation  of,  165. 


INDRX  ""'^ 

[The  flgurea  refer  to  sections] 

ADMINISTRATORS— ( Ontiuued. 

Termination  or  At  thority  to  Administer— rontinued, 

Proceedings  against  on  death,  resignation  or  revocation  of 

letters,  1G6,  Km. 
Discharge  of,  liow  obtained  and  effect  thereof,  382. 
Proceedings  by   creditor  after  discharge,  385. 

ADMINISTRATRIX, 

Marriage  of.  vacates  ofRce,  140,  160. 
Married  woman,  liinnot  be,  140. 

ADOPTION  OF  CHILDREN, 

Relinciuishniont  by  i)arent,  form  and  effect  of,  528. 

Deed  of  adoption,  .528. 

Changing  name  of  adopted  child,  .529. 

Adoption  of  child  under  seven,  530. 

County  court  may  award  custody,  531. 

Right  of  adopted  child  as  heir  of  adopting  parent,  338. 

ADVANCEMENTS, 

Charged  to  children,  when,  339. 

AGE, 

Of  majority  In  males  and  females,  6. 
Testamentary  capacity  at  what  age,  6. 
May  bg  executor  or  administrator  at  what  age,  140. 
Guardian  must  settle  with  ward,  when,  490. 

AGENT, 

Affidavit  to  demand,  by,  270. 
Affidavit  for  appeal,  by,  417. 
Of  absent  administrator,  283. 

ALIEN, 

Extent  of  disability  to  make  will,  8. 

ALLOWANCE,  ^^.,^ 

See    Absolute    Property;     Administrators;     Children;     De- 
mand;   Minor;    Widow;    Widower. 
To  widow  for  support  of  children,  354. 
To  widow  of  what  property,  211. 
To  widow,  when  there  is  deficiency,  212. 
To  minor  children  and  widower,  147,  213. 
To  widow  or  widower  of  whole  estate,  when,  147,  334. 
Of  demands  against  estates,  260-284. 
Of  demands  against  partnership  estate,  392,  398. 
Of  compensation  to  executor  or  administrator,  372. 
Same  to  guardian  or  curator,  497. 

AMBIGUITY, 

In  will,  patent  or  latent,  what  effect,  98. 

ANCILLARY  ADMINISTRATION,  360-365. 
Sec  Foreign. 

ANIMALS, 

See  Assets. 
Domestic,  are  assets,  176-177. 
Wild  by  nature,  reclaimed,  are  assets,  177. 

Kel.Mo.P.G.— 39 


610  INDEX 

[The  figures  refer  to  sections] 

ANIMATE  CHATTELS, 

What  are,  177-lSO. 

ANNUITIES, 

What  are  and  assets  when,  191. 
Tables  of,  445-447. 

ANSWER, 

By  guardian  ad  litem,  351,  462. 

Form  of  in  proceeding  to  discover  concealed  or  embezzled  as- 
sets, 217. 

APPEALS, 

From  what  orders  of  probate  court  appeal  may  be  taken,  417- 

419. 
Within  what  time  appeal  must  be  taken,  41S. 
Affidavit  and  bond,  418. 
No  bond  required,  when,  418. 
Circuit  court  to  hear  case  anew,  419. 
Appeal  by  guardian,  499. 

APPOINTMENT, 

Of  executors  and  administrators,  132-169. 

Of  special  administrator,  135. 

Of  witnesses  to  aid  in  making  inventory,  204. 

Of  appraisers  of  personal  estate,  209.  • 

Of  appraisers  of  real  estate  sold  to  pay  debts,  306. 

Of  guardian  or  curator,  how  made,  45G. 

Of  guardian  of  insane,  506 ;    of  friendless  child,  500. 

Of  collateral  inheritance  tax  appraisex*,  560. 

APPRAISEMENT, 

Of  personal  estate,  how  made,  209. 
Of  additional  estate,  to  be  made,  210. 
Of  property  allowed  to  widow,  208. 
Of  real  estate  to  pay  debts,  306. 
Of  ward's  estate  by  guardian  or  curator,  466. 
Of  personal  property  subject  to  lien,  233. 
Of  portion  of  estate  reserved  from  sale,  236. 
Of  partnership   estate   by    individual   executors    or   administra- 
tor, 396. 
Of  estate  for  collateral  inheritance  tax,  550. 
Of  partnership  estate,  by  surviving  partner,  391. 

APPRAISERS, 

Qualifications  and  oath  of,  200. 

Usual  to  have  witnesses  act  as  appraisers,  209. 

Compensation  of,  209. 

Of  real  estate  sold  to  pay  debts,  305. 

In  estates  subject  to  collateral  inheritance  tax,  549-560. 

APPRENTICE, 

Executor  or  administrator  has  no  right  to,  196. 
Guardian  may  apprentice  ward,  463. 
lilinors  may  be,  at  what  age,  532. 
The  indenture,  534. 
Treatment  of,  535. 


INDEX  ^^^ 

[The  figures  refer  to  sections] 

APPRENTICE— Continued. 

Proceedings  against,  536,  538. 

Not  to  be  removed  from  state,  540. 

What  law  applies  to,  541. 

APPROVAL, 

Of  allowance  of  claim  by  court.  271. 

Of  report  of  sale,  310. 

Of  bond  taken  in  vacation,  154. 

ASSENT, 

Of  executor  to  legacy,  323. 

•'  '  '  What  are,  in  hands  of  executor  or  administrator,  170-203. 
Vest  in  representative,  when,  171. 
Nature  of  interest  of  representative  in,  172. 
What  interests  in  lands  are,  174,  175. 
Animate  chattels  are,  177. 
Vegetable  chattels  are,  178,  180. 
Inanimate  chattels  are,  181. 
Fixtures  are,  when,  183-187. 
Leases  are,  when,  188. 
Rents  are,  when,  189. 

Stocks  are,  when,  190. 
Annuities  are,  when,  191. 

Property  held  in  trust  is,  when,  192. 

Patents  are.  when.  193. 

Copyright  is,  when,  194. 

Policies  of  insurance  are,  when,  195. 

Articles  of  apprenticeship  are  not,  196. 

Partnership  effects  are,  when,  197,  386. 

Goods  mortgaged  are,  when.  198.  ^     „  „^^ 

Choses  in  action  of  husband  and  wife  as  against  survivor  are, 
when,  199-202. 

Chattels,  donatio  causa  mortis,  are  not,  203.  ■  ,  .     on 

Of  foreign  administration  held  subject  to  domestic  rights,  3bl- 

Debtt  due  the  estate  by  Uie  executor  or  administrator  are,  251. 
Property  of  widow  is  not,  208. 

^lo  Compel  delivery  of  property  by  administrator  to  successor, 

To  compel  appearance  to  account  for  concealed  assets.  216. 

To  compel   administrator  to   file  exhibits   where  creditor  seeks 

to  sell  real  estate,  302. 
Compel  settlement  by,  368,  309. 
Sale  of  personal  proix^rty  subject  to,  233. 
Application  of  proceeds  of  sale,  234. 
Sale  of  real  estate  bound  by  lien,  316. 
Distribution  of  proceeds,  316,  317. 

ATTESTATION, 

Of  will,  how  and  by  whom,  29,  30. 


612  INDEX 

[The  figures  refer  to  sections] 

ATTORNEY, 

Allowance  for  legal  services  at  final  settlement,  372. 

AUCTIONEER, 

May  be  employed  to  cry  sale,  228. 

B 

BASTARDS, 

May  inherit  and  transmit  property,  when,  341. 

BEQUEST, 

WTiat  is,  may  be  general  or  special,  321. 

Assent  of  executor  thereto,  323. 

When  cumulative,  324. 

In  lieu  of  dower,  when,  325. 

To  creditor  in  satisfaction  of  debt,  326. 

By  creditor  to  debtor,  327. 

Interest  on,  when  payable,  328. 

Time  when  to  be  paid,  330. 

Will  lapse,  when,  and  when  not.  100,  101,  322. 

BIDDERS, 

Who  may  be  at  sale  of  personal  estate,  228. 
May  withdraw  bid,  when,  228. 

BLIND, 

Person  may  make  a  will,  9. 

BONDS, 

Appeal  Bond,  418. 

Of  Executors  and  Administrators, 

E.xecnator  no  authority  to  act  without,  155. 

Form  of,  150. 

Execution  of,  152. 

Liability  on,  151. 

Recorded,  how,  156. 

Additional  bond,  162,  163. 

In  partnership  estate,  400. 

Clerk  to  require  good  securities,  152. 

Who  shall  not  be  taken  as  securities,  153. 

Approval  of  bond  taken  in  vacation,  154. 

Of  executor  and  administrator,  with  will  annexed,  150. 

Suit  on    bond   of   executor   or  administrator,    414-416 ;    of 
public  administrator,   407;    of   surviving   partner   admin- 
istering, 390. 
Guardians  and  Curators, 

Form  of  bond,  457. 

Of  guardian  to  sell  real  estate  of  ward,  474. 

Of  guardian  of  person  of  unsound  mind,  507. 
Legatees  and   Disthibutees, 

Refunding  bond,  3.32. 

BURIAL, 

Right  of,  belongs  to  whom,  200. 
Expenses  of,  governed  by  what.  260. 
Expenses  must  be  paid  first,  2(J0. 


fNDEX  ^^^ 


[Tbe  flgurea  refer  to  sections] 


BURNING, 

Will,  effect  of.  50-51. 


CAPACITY, 

Allegation  of  representative,  243. 

CAVEAT  EMl'TOR, 

Rule  of,  applies  to  sales,  when,  228. 

CERTIFICATE, 

Of  witnesses  to  inventory,  205. 

Of  appraisers  of  personal  estate,  209. 

Of  appraisers  of  real  estate  to  pay  debts.  30G. 

Of  clerk  in  case  of  appeal,  to  transcript,  419. 

Of  probate  of  will,  75. 

Of  purchase  of  real  estate  at  guardian's  sale.  471. 

Of  discharge  of  guardian,  496. 

By  probate  court  to  expense  of  keeping  insane  ward,  5.^. 

CHATTETvS, 

See  Assets. 
Real,  174. 
Animate,  177. 
Vegetable,  178. 
Inanimate,  181. 
What  the  word  comprehends  in  a  will,  93. 

CHILDREN, 

May  be  disinherited,  34. 

When  not  named,  how  affected  by  will,  34-^2. 

Terms  "children,"  "grandchildren,"  how  construed,  96. 

Claims  by,  against  estate,  259. 

Friendless,  how  cared  for,  500-503. 

Right  in  homestead,  434. 

Allowances  to  minor  children,  211^213. 

Allowance  for  support,  354. 

CHOSES  IN  ACTION, 
Are  assets,  182. 

CIRCUIT  COURT, 

Will  contested  in,  how,  85,  86,  87. 
Has  appellate  jurisdiction,  417-419. 

CITATION 

To  com'pel  account  by  executor  or  administrator,  368. 

To  administer  on  estate,  146. 

To  show  cause  against  revocation  of  letters,  161. 

For  settlement,  when,  368. 

For  proof  of  nuncupative  will,  77.       ,  ^     ^    ^     „__ 

To  answer  as  to  concealed  or  embezzled  effects,  217. 

To  surviving  partner,  when.  396,  397. 

To  delinquents  in  payment  collateral  inheritance  tax.  560   (form 

XI). 


614  INDEX 

[The  figures  refer  to  sections] 

CLAIMS, 

Against  estate,  how  allowed,  264-284. 
In  partnership  estates,  392,  398. 
By  children  of  decedent,  259. 
Against  administrator  or  executor,  251. 
By  administrator  or  executor,  277. 
How  exhibited,  261,  262. 

CLASSIFICATION, 
Of  demands,  260. 

CLERK, 

Of  sale  of  personal  estate,  230. 

Affidavit  of,  to  sale  bill,  231. 

Judge  may  appoint,  his  powers  and  duties,  122. 

Of  court  may  grant  letters  in  vacation,  138. 

May  approve  bond,  subject  to  approval  of  court,  154. 

May  admit  will  to  probate,  subject  to  approval  of  court,  65 

Clerk  to  hold  election  for  special  judge,  119. 

Keep  books  and  docket  for  settlements  of  accounts,  129. 

To  indorse  class  to  which  demands  are  assigned,  281. 

COADMINISTRATOR   OR   COEXECUTOR, 

WTien  liable  and  when  not,  for  acts  of  each  other,  408. 
May  join  in  bond,  155. 

CODICIL, 

See  Wills. 
Defined,  4. 
May  republish  will,  61. 

COLLATERAL  INHERITANCE  TAX, 

Estate  subject  to  tax,  542. 

Applies  to  personal  property  of  resident  decedent,  wherever  lo- 
cated, 542. 

When  due  and  payable,  543. 

Probate  judge  may  extend  time,  543. 

Tax  collector  to  account  to  state  treasurer,  544. 

As  applied  to  reniainders  and  reversionary  interests,  545. 

Affects  property  bequeathed  to  executors,  when,  545. 

Duties  of  administrator,  etc.,  in  relation  to  tax,  546. 

Must  not  deliver  property  to  distributee  without  making  deduc- 
tion, 546. 

Tax  repaid  to  legatee,  when,  547. 

Duties  of  executor  when  real  estate  subject  to  tax,  548. 

Appointment  of  appraiser,  549. 

Powers  and  duties  and  compensation  of  appraiser,  549. 

Report  of  appraiser,  550. 

Those  dissatisfied  with  appraisement  may  appeal,  551. 

Reappraisal,  when  and  how,  552. 

Appraiser  guilty  of  misdemeanor,  when,  553. 

Jurisdiction  of  probate  court,  554. 

State  auditor  to  furnish  books,  etc.,  555. 

Report  of  probate  judge,  556. 

County  collector  may  require  citation  where  tax  not  paid,  557. 

Collector's  receipt,  558. 


INDEX  ^^"^ 

[The  figures  refer  to  sections] 
COLLATERAL  INHEIUTANCE  TAX-Cuntinued. 
Fees  of  collector,  559.  __ 

Must  pay  one-fifth  of  fees  to  proDate  judk'e,  o;jn 
Foms  for  use  in  conBectiou  witU  collectioa  of  tax.  500. 

COLLECTION  OF  DEHTS, 

By  executor  or  administrator,  ->..J--.». 

In  what  courts,  2:!'.).  ,,  „    o^-j 

Must  sue  in  representative  character,  when.  243. 

Effects  in  other  state,  how  recovered,  .41 

When  action  accrues  after  death  of  decedent    24  >. 

Suit  commenced  by  deceased  to  be  prosecuted,  24o. 

Security  for  costs  not  required,  247. 

Set-off,  when  allowed,  24S,  24!). 

Must  use  what  dilitience,  2:57   238. 

Separate  debts,  how  far  liable  for  208   2..8. 

Notes  and  claims  may  be  assigned  to  heirs,  etc.,  oSl. 

By  guardian,  462,  404. 

Of  insane  ward,  513. 

COMMISSION, 

Form  of,  to  obtain  proof  of  a  will,  67. 
Allowed  as  compensation  to  administrator,  3.2. 
Allowed  to  public  administrator,  402 
Allowed  to  collector  on  inheritance  tax,  oSVJ. 
Allowed  to  judge  on  inheritance  tax,  5o9. 

COMPENSATION, 

Of  executors  and  administrators,  3i-. 
Of  witnesses  and  appraisers,  209. 
Will  be  allowed  for  crying  sale,  228. 
Of  public  administrator,  402. 
Of  guardian  and  curator,  497. 

""""'Fj^^revJcation  of  letters  or  additional  bond.  162. 

COMPROMISE, 

Of  debts,  238. 
CONCEALING  GOODS, 

Action  against  persons  suspected  of,  -lo. 

Nature  of  proceedings,  216. 

Form  of  affidavit  and  citation  therein,  217. 

Answer  of  accused.  217. 

Order  and  judgment,  218. 

Action  of  public  adnunistrator  in  such  case.  405. 

Action  by  guardian  and  curator  for,  407. 

CONSTRUCTION, 
See  Wills. 
Of  wills,  general  rules  for.  89-103. 

CONTESTING, 

Validity  of  will,  84-88. 

CONTINUANCE, 

General  power  of  court,  379. 
To  continue  settlement,  379. 


616  INDEX 

[The  figures  refer  to  sections] 

CONTRACTS, 

For  the  purchase  of  land  by  decedent  may  be  performed,  or  how 

disposed  of,  289-291. 
For  sale  of  land  by  decedent,  how  enforced,  292-297. 

CONTRIBUTION, 

By  legatees  and  devisees  to  child  omitted  in  ^Yill,  39,  40. 

By  heirs  to  payment  of  ancestor's  debts,  385. 

Between  surviving  partner  and  estate  of  deceased  partner,  387. 

COPYRIGHT, 
Is  asset,  194. 
Eistension  of,  belongs  to  widow  and  children,  194. 

CORPORATION, 

May  act  as  guardian  of  friendless  children,  500-503. 

COSTS, 

Security  for,  not  required  when,  247. 

Party  prevailing  shall  recover,  279. 

Executor  or  administrator  liable  for  when,  and  when  not,  279. 

Party  suing  in  circuit  or  district  court  shall  pay  when,  266. 

In  fees  allowed  to  officers  of  court,  131. 

COUNTY, 

In  which  will  must  be  proved,  63. 

In  which  letters  must  be  issued,  139. 

In  which  guardian  must  be  appointed,  452. 

COURTS, 

See  Actions;    Administrators;    Executors. 
Jurisdiction  of  probate,  111-116. 
Executor  and  administrator  may  sue  in  what,  239. 

COVERTURE, 

Disability  of,  to  make  will,  7. 

CREDITORS, 

See  Actions ;   Claims ;   Collection  of  Debts,  etc. 
May  compel  administration  when  existence  of  property  is  shown 

not  allowed  widow,  widower  and  minor  children,  147. 
Applications  for  additional  bond,  162,  163. 
Claims  of,  how  allowed,  256-279. 
May  file  petition  for  sale  of  land  to  pay  debts,  302. 
Must  swear  to  claims,  269. 

Heirs,  devisees  and  distributees  liable  to,  when,  385. 
Legacies  to,  in  satisfaction  of  debts,  326. 
Legacy  by,  to  debtor,  effect  of,  327. 

CROPS, 

Growing,  are  assets,  179,  ISO. 

CUMULATIVE, 
Legacies,  324. 

CURATOR, 

See  Guardian. 
How  defined,  448. 
Office  and  duties,  459-464. 


INDEX  617 

[The  figures  refer  to  sections] 

D 

DAMAGES, 

Sustained  during  life  of  decedent  may  be  recovered,  when,  181.', 
240. 

DEATH, 

Of  testator  must  be  shown,  64. 

Will  takes  effect  and  speaks  from,  and  must  depend  upon,  61'. 
Of  witness  to  will,  69. 
Is  presumed  when,  .SoO. 
Of  ward  terminates  guardianship,  491. 
Civil,  what  is,  and  effect  of,  19. 
DE   BONIS   NON,  ADMINISTRATOR. 
Defined,  135. 
Form  of  letters  to,  158. 
Notice  of  grant  of  letters  to,  220. 
Right  to  possession  of  property,  167. 
Duty  to  close  up  estate.  167. 

Former  administrator  retiinred  to  settle,  etc.,  168. 
Form  of  petition  by  administrator  de   bonis  non  for  judgment 
against  securities  of  former  administrator,  168. 
Form  of  judgment  entry,  etc.,  169. 

DEBTS, 

See  Actions;    Claims;    Collection  of  Debts;    Creditors,  etc. 
Collection  of,  by  executor  or  administrator,  237-255. 
To  be  paid  in  what  order,  319. 
Must  be  paid  before  legacies,  331. 
Sale  of  laud  to  pay,  298-318. 
Legacy  to  creditor  in  satisfaction  of,  326. 
Liability  of  legatee  for,  332,  ;>52. 
Court  may  order  payment  of,  376. 
Execution  may  issue  when,  377. 
Liability  of  heir  for,  when,  385. 
Of  executor  to  administrator  on  promise  to  pay,  410. 

DEED, 

By  executor  under  power  in  the  will,  and  form,  285. 

On  sale  of  executory  contract  for  the  purchase  of  laud,  292. 

On  sale  of  land  by  deceased,  when,  294. 

On  sale  of  land  to  pay  del.ts,  310. 

On  sale  of  land  by  guardian,  form  of,  472. 

Of  curatrix,  472. 

DEMANDS, 

See  Absolute  Property  ;   Claims. 
How  classified,  260. 
How  exhibited,  262. 
How  established,  264-284. 
How  allowed,  277. 

Should  not  be  paid  without  allowance.  272. 
Not  due,  276. 

How  allowed  in  absence  of  administrator,  283. 
Allowance,  how  vacated,  284. 


618  INDEX 

[The  fig^ures  refer  to  sections] 

DEMANDS— Continued. 

Paid  in  order  classified,  281,  282. 

Payment  of  debts  and  legacies,  819,  333. 

May  be  compromised,  when,  238. 

Barred  by  limitation,  when,  261. 

Suit  pending,  how  classed,  264. 

Set  off,  administrator  may,  2-48. 

Depositions,  in  support  of,  271. 

Trial,  when  demand  less  than  .?20  and  over  that  amount,  274. 

When  founded  on  note,  275. 

Of  near  relative,  259. 

Of  executor  or  administrator,  277. 

Against  insane  ward,  512. 

DEVISEE, 

See  Bequest ;    Legacy  ;    Wills. 
Takes  life  estate  when,  23,  92. 
Writing  will  excites  suspicion  when,  24. 
May  be  attesting  witness  to  will,  29. 
\Miat  words  in  a  devise  to,  pass  a  fee.  22,  23,  91. 
Must  answer  the  description  in  the  devise,  94,  98. 
Devisees  take  per  capita,  when,  96,  337,  338. 

DEVISE, 

See  Devisee;   Legacy;   Wills. 
May  lapse  when,  and  when  not,  100,  101. 
To  widow  in  lieu  of  dower,  110,  427. 

DISCHARGE, 

Of  executor  or  administrator,  384,  385. 

Of  guardian  or  curator,  486. 

Of  guardian  of  insane  person,  527. 

DISINHERITING, 

Wife  or  child  when  and  how,  32-40. 

DISTRIBUTION, 

In  General,  334-359, 
Time  of  Distribution, 

Speedy  settlement  of  estates,  256. 

Cannot   be    compelled   within   one   year   without   refunding 

bond,  330. 
Cannot  be  compelled  within  six  mouths  unless  legacy  is  per- 
ishable, 330. 
At  final  settlement,  381,  382. 
Debts  to  be  paid  before  legacies,  331. 
Manner  of  Distribution, 

Who  are  entitled  to  distribution,  335. 
When  widow  takes  whole  estate,  334. 
Interest  of  widow  in  personal  estate  when  real  estate  has 

been  sold,  349. 
Widow's  share  of  rents,  355. 
Share  of  widow,  336. 
Children,  allowance  for  support  of,  354. 
Non-resident  minors  represented  by  guardian  ad  litem,  351. 


INDEX  G19 

[The  figures  refer  to  sections] 

DISTRIBUTIOX— Continued, 

Manner  of  Distrihition — rontimicd, 

Illegitimate  children,  entitled   to  sliare  of  mother's  estate, 
341. 

Children  of  the  half-blood,  :V.',7. 

Of  deceased  minor's  estate,  491. 

Adopted  children,  IVM. 

To  collateral  kindred,  ;«7. 

Take  per  capita  and  per  stirpes,  when,  338. 

Advancements,  how  considered,  .'JoJ). 

Of  estate  not  bequeathed,  340. 

Distribution  of  property  in  kind  or  proceeds,  343. 

Partition  of  personal  property,  forms,  343-348. 

Di.sposition  of  legacy  or  share  not  called  for,  359. 
Refunding  by  Legatee  or  Distributee, 

Order  for  refunding,  352. 

Notice  to  distributee  of  motion  for  judgment,  353. 

Judgment,  3.53. 

Refunding  bond  and  receipt  for  legacy,  332. 
Heirship, 

How  proved  and  settled,  350. 

Suit  by  heir  for  distributee's  share,  414. 

DIVORCE, 

Effect  of,  on  dower,  429. 

DOMICILE, 

See  Guardian. 
Of  deceased  is  the  place  of  the  principal  administration,  360,  361. 
Personal  estate  is  disix)sed  of  by  the  law  of,  81-83,  362. 
Will  must  be  proved  in  county  of  testator's,  63. 
Will  of  personal  estate  governed  by.  83,  81. 
Of  child  follows  that  of  its  parents,  452,  480. 

DONATIO   CAUSA  MORTIS, 
How  defined,  203. 

DOWER, 

See  Allowance  (to  widow) ;    Widow. 
Devise  or  bequest  taken  in  lieu  of,  when,  and  when  not.  110,  427. 
Interest  of  widow  in  personal  estJite,  432. 
When  real  estate  has  been  sold,  349. 

In  real  estate,  its  nature  and  to  what  it  attaches,  420-13L 
Widow  may  elect  to  take  what,  in  lieu  of,  422. 
Notice  of  right  of  election,  in  case  of,  form  of,  423. 
Election,  when  and  how  made,  and  form  of,  424. 
Election  of  widow  to  tiike  child's  part  in  lieu  of,  425. 
May  be  barred,  avoided  or  released,  how,  427-430. 
May  be  diminished  by  right  in  homestead,  444. 
Widow  cannot  be  deprived  of,  by  will,  .32,  110. 
Pre.sent  value,  how  ascertained,  445-447. 

DRUNKENNESS, 

Effect  of,  on  will,  14. 

Is  cause  for  removal  of  executor  or  administrator,  161. 

Cause  of  apiwintoent  of  guardian,  504. 


620  INDEX 

[The  figures  refer  to  sections] 

DUMB, 

Person  may  make  a  will,  9. 

E 

ELECTION, 

Of  widow  in  matter  of  dower  when  and  how  made,  424. 
Of  widow  to  take  child's  share,  when  and  how  made,  425. 
Of  widow  to  take  dower  instead  of  a  devise,  110. 

EMBEZZLED, 

Effects,  how  recovered  by  executor  or  administrator,  215-218. 
By  guardian  recovered  how,  467. 

EMBLEMENTS, 

How  defined  and  to  whom  they  belong,  179. 

EQUITABLE, 

Interest  in  land  how  disposed  of,  289-297. 
Widow  has  dower  in  such  lands,  421. 

EQUITY, 

When  money  regarded  as  land  and  land  as  money,  285. 
Contract  for  sale  of  land  enforced  in,  292. 

ESTABLISHING, 

See  Claims;    Creditors;    Debts. 
Claims  against  estates,  264-284. 
By  executor  or  administrator,  277. 

ESTATES, 

See  Administrators;    Assets. 
Interest  of  executor  or  administrator  in  property  of,  170-20*5. 
When  the  title  vests  in  administrator,  170-173. 
Nature  of  the  interest  of  the  executor  or  administrator  in,  172. 
When  the  widow  takes  the  whole,  3154. 
Widow's  portion,  208-214. 
Partnership,  how  administered,  386-401. 
When  public  administrator  shall  administer,  403,  407. 
Of  non-resident,  how  administered,  360. 
When  the  estate  is  insolvent,  364. 
Of  absentee,  how  administered,  359. 
Of  non-resident  ward,  how  transferred,  458. 

EVIDENCE, 

Depositions  may  be  taken,  when,  275. 

Execution  of  note  must  be  established,  275. 

Demand  of  executor  or  administrator,  277. 

General  rules  of  evidence  govern,  when,  274. 

Reference  may  be  had,  when,  274. 

Competency  of  witnesses  in  action  by  or  against  estate,  255. 

EXECUTION, 

Property  bound  by,  how  inventoried,  233. 

Same,  how  sold  and  proceeds  applied,  234,  235. 

Real  estate  bound  by  lien  of,  how  disposed  of,  316,  317. 

May  issue  against  executor  or  administrator  when,  377. 

Of  writing  of  note  by  deceased  must  be  proved.  275. 

Against  executor,  cannot  be  levied  on  effects  of  estate,  172. 


INDEX  621 

[The  flgurea  refer  tx)  sections] 

EXECUTORS, 

See  Administrators;    Sale. 
Office  of  defined,  l.'J'J. 
Executor  de  son  tort  defined,  VAli. 

Derives  powers  from  tlie  will,  hut  must  talie  out  letters,  137. 
Who  may  and  who  may  not  be,  140,  141. 
What  court  and  in  what  county  to  obtain  letters,  i:JS-l.;!t. 
Sale  of  real  estate  by  (see  sales),  under  power  contained  in  will, 

174,  2Srj. 
Of  executory  contract  for  the  purchase  of  land,  289. 
May  enforce  contract  for  sale  of  hind.  2;»L'. 
Of  lands  incumbered,  290. 
For  the  payment  of  debts,  30O-31S. 
Proceedings  when  real  estate  has  been  sold  on  junior  judgment, 

317. 
May  attest  the  will,  28-30. 
May  have  will  proved,  63. 

EXECUTRIX. 

See  Administrators ;    Executors. 
Marriage  of,  revolves  her  authority.  140. 
Married  woman  cannot  be,  140,  160. 

EXEMPLIFICATION, 

Of  record  by  foreign  guardian,  476,  477. 

EXPECTANCY, 
Of  life,  446. 

EXPENSES. 

Of  administrator,  372. 

Of  funeral,  260. 

Of  guardian  should  be  reimbursed,  495,  496. 


fa:mii>y. 

Term,  how  construed  in   a  will,  97. 
Entitled  to  provisions,  212. 
Entitled  to  what  i)roperty,  211-214. 
Entitled  to  homestead,  441,  442. 

FATHER, 

May  disinherit  child,  32-40. 

Is  natural  guardian  of  child,  448. 

May  appoint  guardian  by  will,  449. 

Is  entitled  to  distribution  of  child's  estate,  335. 

FEES. 

Of  probate  judge,  131. 
Of  collector,  559. 

FEMiE  COVERT, 

See  Married  Woman. 
Mav  make  a  will.  7. 


622  INDEX 

[The  figures  refer  to  sections] 

FINAL, 

Account  of  executor  or  administrator,  379-385. 
Of  guardian  or  curator,  490-494. 

FIXTURES, 

What  are,  and  right  of  executor  or  administrator  to,  1S3-187. 

As  between  landlord  and  tenant,  185. 

May  be  removed  when,  187. 

I'ass  with  sale  or  devise  or  land  when,  187. 

FOREIGN, 

Wills,  81-83. 

Estates,  how  administered  and  distributed,  360-365. 

Heirs  may  receive  distributive  share,  how,  363. 

Guardian  may  sell  ward's  real  estate  how,  476. 

May  remove  ward's  estate,  how  and  when,  477. 

Settlement  of  guardian  in  case  of  non-resident  ward,  480. 

Administrator,  361. 

FOREIGNER, 

May  make  a  will,  8. 

FORMS, 

Actions  Against  Executors  and  Administeatoks, 

Petition  of  creditor  for  further  account,  411. 

Petition  in  suit  on  administrator's  bond,  416. 
Administrators, 

See,  under  this  heading,  Actions  against  Executors  and  Ad- 
ministrators; Bonds  of  Executors  and  Administrators; 
De  Bonis  Non,  Administrators;  Exec-utors  and  Adminis- 
trators ;  Public  Administrators ;  Sale  and  Conveyance  of 
Real  Estate,  Duties  of  Executor  and  Administrator ;  Sale 
of  Personal  Estate  by  lOxecutor  or  Administrator;  Set- 
tlements of  Executors  and  Administrators. 
Adoption  of  Children, 

Deed  of  adoption,  528. 

Affidavit  as  to  immoral  character  of  parents,  528. 

Order  changing  name  of  child,  5.30. 
Allowance  of  Demands  Against  Estates, 

Notice  of  the  presentment  of  a  demand  for  allowance,  267. 

Return  of  service,  207. 

Notice  of  account,   267. 

Notice  to  take  depositions,  275. 

Demand  of  executor  or  administrator,  277. 

Form  of  judgment,  278. 

Judgment  of  allowance  by  default,  280. 

Judgment  against  claimant,  280. 

Judgment  in  case  of  a  jury  trial,  280. 
Annual  Settlements, 

See,  under  this  heading.  Settlements  of  Executors  and  Ad- 
ministrators ;    Settlements  of  Guardians  and  Curators. 
Appeals, 

Affidavit  for  an  appeal,  418. 

Appeal  bond,  418. 

Certificate  of  transcript,  419. 


INDEX  623 

[The  figures  refer  to  sections] 
FORMS— Continued, 
Appraisement, 

See,  under  this  heading.  Inventory  and  Appraisement 
Apphentices, 

I'etitiou  for  apprenticeship  of  children,  Glili. 

Indenture  of  apprenticessliip.  5o4. 

Approliation  of  the  court,  5.j4. 

Complaint  against  master,  535. 

Complaint,  536. 

Citation,  536. 
Bonds  of  Executors  and  Administbatobs, 

Bond  of  administrator,  150. 

Bond  of  executor  or  administrator  with  will  annexed,  150. 

Attidavit  for  additional  bond.  162. 

Notice  to  principal  of  couii»!aint  for  additional  bond,  etc., 
162. 

Of  citation  to  executor  or  administrator  to  show  cau.se  why 
his  letters  should  not  be  revoked  or  give  additional  bond 
or  further  security.  1C3. 

Order  in  case  of  complaint  for  revocation,  etc.,  163. 

Order  on  complaint  for  additional  bond,  163. 
Bonds  of  Guardians  and  Cuuatous, 

Bond  of  guardian  or  curator,  -157. 
Collateral  Inheritance  Tax, 

I'etition  and  order  for  appointment  of  an  appraiser,  560. 

Notice  by  appraiser  to  persons  designated  in  section  322,  R. 
S.  Mo.  1909,  560. 

Report  of  appraiser,  560. 

Aflidavit  of  appraiser  as  to  fees  and  disbursements,  500. 

Entry  assessing  and  fixing,  on  rep<n-t  of  appraiser  the  cash 
value  of  estate  and  the  amount  of  tax  thereon.  560. 

Notice  by  probate  judge  to  persons  interested  of  time  and 
place  of  appraisement  by  the  proltate  judge,  560. 

Entry  fixing  and  assessing  cash  value  of  estate  and  the 
amount  of  tax  thereon  without  appointment  of  apprais- 
er, 560. 

Notice  to  interested  persons  of  assessment,  560. 

Statutory  notification  by  county  collector  to  prosecuting 
attorney,  560. 

Petition  of  prosecuting  attorney   for  citation,  560. 

Citation  under  section  329,  Revised  Statutes  of  Missouri 
1909,  560. 

Order  of  publication,  560. 

Order  and  decree  fixing  tax  and  directing  payment,  etc.,  560. 
Curators, 

See.  under  this  heading.  Bonds  of  Guardians  and  Curators: 
Guardians  and  Curators;    Sale  of  Real  Estate  of  Minors 
by  (hiardian  or  Curator;     Settlements  of  Guardians  and 
Curators. 
De  Bonis  Non,  Administrators, 

Letters  of  administration,  15S. 

Petition  for  judgment  against  securities  of  former  adminis- 
trator, 168. 


624  INDEX 

[The  figures  refer  to  sections] 

FORMS— Continued, 

Debts  and  Legacies, 

Receipt  for  demand,  320. 

Receipt  for  spediie  legacy,  332. 

Receipt  for  a  legacy,  332. 

Refunding  bond  of  legatee,  332. 
Debts  Due  the  Estate, 

Notice  of  such,  petition,  entry  or  judgment  in  sucU  case,  169. 
Deeds, 

Administrator's  deed,  29i,  310. 

Executor's  deed,  2S7. 

Petition  for  deed,  292. 

Guardian's  deed,  472. 

Curator's  deed,  472. 
Distribution  of  Estates, 

Citation  to  administer,  146. 

Form  of  petition  for  division  of  personal  property,  343. 

Notice  of  application,  345. 

Order  of  court  for  partition  of  personal  property,  346. 

Affidavit  of  commissioners,  348. 

Report  of  commissioners,  34S. 

Order  approving  report,  348. 

Notice  to  distributee  of  motion  for  judgment,  353. 

Judgment  against  distributee,  353. 

Order  for  refunding,  352. 

Do  WEE, 

Notice  to  widow  of  right  of  election,  423. 

Declaration  of  election  by  widow,  424. 

Declaration  of  widow  to  take  a  child's  part,  425. 

Petition  for  homestead  and  dower,  444. 

Order  for  assignment  of  homestead  and  dower,  444. 

Oath  of  commissioners,   444. 
Executoks  and  Administrators, 

Of  citation  to  administer,  146. 

Of  renunciation  of  right  to  adjuinister,  146. 

Of  order  refusing  administration  for  insufficiency  of  prop- 
erty, 147. 

Renunciation  of  executor,  146. 

Of  application  for  letters   testamentary  or   of  administra- 
tion, 148. 

Oath  of  executor  or  administrator  with  the  will  annexed, 
149. 

Of  entry  appointing  administrator  or  executor,  149. 

Bond  of  administrator,  1.50. 

Bond  of  executor  or  administrator  with  will  annexed,  150. 

Of  letters  testamentary,  158. 

Of  letters  of  administration,  158, 

Letters  of  administrator  de  bonis  non,  158. 

Of  complaint  for  revocation  of  letters,  161. 

Notice  of  application  for  revocation  of  letters,  161. 

Of  affidavit  for  additional  bond,  162. 

Of  notice  to  principal  of  complaint  for  additional  bond,  etc, 
162. 


INDEX  625 

[The  figures  refer  to  sections] 
FORMS — Continued. 

EXECUTOKS    AM)    Al)MIMSTI!AT()KS — ( 'ollt  ilHU'(l. 

Of  citation  to  exefutor  or  aclniinistrator  to  show  cause  why 
his  letters  should  not  be  revoked  or  give  additional  bond 
or  further  security,  163. 

Of  order  in  cast'  of  complaint  for  revocation,  etc.,  lG.*i. 

Form  of  order  on  complaint  for  additional  bond,  1G3. 

Form  of  notice  of  resi^iuation,  100. 

Form  of  resignation,  lUo. 

Form  of  order  acceptin;,'  resignation,  165. 

Petition  by  adnunistrator  de  bonis  nou  for  judj^ment  against 
securities  of  former  administrator,  16S. 

Notice  of  such  petition  entry  or  judgment  in  such  case,  161). 
Final  Settlkxient, 

See,  under  this  heading,  Settlements  of  E.xecutors  and  Ad- 
ministrators:    Settlements   of  Guardians  and   Curators. 
Friendless  Ciiilduen, 

Application  for  appointment  of  guardian,  500. 

Notice  of  application,  500. 

Statement  of  neglect  or  ill-treatment,  502. 

Writ  for  child,  502. 

GlARDIANS   AND    CURATOKS, 

Notice  to  minor  to  appear  and  choose  a  guardian,  452. 

Application  for  curatorship  by  a  father,  456. 

Application  for  a  curatorship  by  a  mother,  456. 

Application  for  guardianship  where  there  are  no  parents 
living,  456. 

Certificate  of  guardianship,  456. 

Appointment  of  guardian,  456. 

Letters  of  guardianship  or  curatorship,  457. 

Bond  of  guardian  or  curator,  457. 

Form  of  guardian's  inventory,  465. 

Petition  for  sale  of  real  estate  by  guardian,  469. 

Order  of  sale,  469. 

Report  of  sale,  470. 

Certificate  of  purchase,  471. 

Guardian's  deed,  472. 

Curator's  deed.  472. 

Petition  for  sale  of  minor's  land,  473. 

Bond  for  sale  of  real  estate,  474. 

Annual  account  of  guardian  or  curator,  4SS. 

Final  settlement  of  accounts,  493. 

Notice  of  final  settlement,  493. 

Ward's  final  receipt,  496. 
Habeas  Cori'us, 

Of  i)etition  for  writ.  119. 
Homestead. 

Petition  for  homestead  and  dower,  444. 

Order  for  assignment  of  homestead  and  dower,  444. 

Oath  of  commissioners.   444. 

Report  of  commissioners,  444. 

iNlIERrTANCE    TaX, 

See,  under  this  heading.  Collateral    Inheritance  Tax. 
Kel.Mo.P.G. — 10 


626  INDEX 

[The  figures  refer  to  sections] 

FORM  S— Continued, 
Insane  Persons, 

Forms  of  information,  504. 
Order  to  bring  in  party,  505. 
•    Entry  wliere  ttie  application  is  made  in  term,  505. 
Entry  of  proceeding  had  at  special  term,  505. 
Guardian's  bond,  507. 
Guardian's  notice  of  letters,  511. 
Inventory  and  Appraisement, 

Form  for  appointing  witnesses,  204. 
The  entry  appointing  witnesses,  204. 
Form  of  inventory,   204. 
Form  of  affidavit,  204. 
Certificate  of  witnesses,  205. 
For  appraisement,  209. 
Appraisers'  estimate  for  widow,  209. 
List  of  property  taken  by  the  widow,  214. 
Affidavit  of  appraisers,  306. 
Certificate  of  appraisement,  300. 
Letters  Testamentary  and  of  Administration, 

Of  application   for   letters  testamentary   or   of   administra- 
tion, 148. 
Of  entry  appointing  administrator  or  executor,  147. 
Oath  of  executor  or  administrator  with  the  will  annexed, 

149. 
Of  bond  of  administrator,  1,50. 

Of  bond  of  executor  or  administrator  with  will  annexed,  150. 
Of  letters  testamentary.  158. 
Of  letters  of  administration,   158. 

Of  letters  of  administration  with  the  will  annexed,  158. 
Letters  of  administration  de  bonis  non,  158. 
Paetnersuip  Estates, 

Bond  of  surviving  partner,  390. 
Form  of  inventory,  391. 

Of  administrator  administering  upon   partnership  property, 
400. 
Public  Administrators, 

Notice  where  public  administrator  takes  charge  without  or- 
der of  court,  404. 
Notice  where  letters  are  granted  by  court  to  public  adminis- 
trator, 404. 
Petition  on  public  administrator's  bond  by  his  successor,  407. 
Publication  of  Notices  Required  During  Administration, 
Notice  of  grant  of  letters,  219. 
Administrator's  notice  to  unknown  heirs,  221. 
Affidavit  of  publication,  223. 
Recovery  of  Concealed,   Embezzled,   or  Wrongfully  With- 
held Assets, 
Of  affidavit  for  recovery  of  property  concealed,  217. 
Of  citation  in  such  case,  217. 
Of  order  or  judgment,  218. 


INDEX  ^27 

[The  flgurea  refer  to  sections] 

FORMS— Continued. 

Kevocation  of  Letters, 

Of  complaint  for  revocation  of  letters,  101. 

Notice  of  aiJplicatiou  for  revocation  of  letters,  161. 

Of  alliilavit  for  additional  bond,  KJli. 

Of  citation  to  executor  or  administrator  to  show  cause  why 

bis  letters  should  not  be  revoked  or  give  additional  bond 

or  furtlier  security,  KI-'}. 
Of  order  in  case  of  complaint  for  additional  bond,  lO:;. 
Sale  and  Conveyance  of  Keal  Estate,   Duties  of   Executok 
and  aumini.stkator, 
Executor's  deed,  2S7. 

Application  to  sell  the  interest  of  deceased,  290. 
Order  of  sale  for  decedent's  interest,  290. 
Petition  for  deed.  '^02. 
Notice  to  administrator,  292. 
Order  of  court,  294. 
DeeQ  of  administrator,  294. 
Sale   of   Personal   Estate   by   Executor  or   Administrator, 
Administrator's  sale,  227. 
Sale  hill,  231. 

Affidavit  of  clerk  of  sale,  231. 
Application  for  order  to  sell  at  private  sale,  232. 
Order  for  private  sale,  232. 
Sale  of  Real   Estate  of  Minors  by   Guarpian   or   Curator. 

Petition  for  sale  of  real  estate  by  guardian,  409. 

Order  of  sale,  469. 

Report  of  sale,  470. 

Certificate  of  purchase,  471. 

Guardians  deed,  472. 

Curator's  deed,  472. 

Petition  for  sale  of  minor's  land,  473. 

Bond  for  sale  of  real  estate.  474. 
Sale  of  Real  Est.\te  to  Pay  Debts, 

Of  petition,  302. 

Order  for  publication  of  notice  in  Missouri,  303. 

Order  of  publication,  303. 

Order  of  sale.  304. 

Affidavit  of  appraisers.  306. 

Certificate  of  api)raisement,  306. 

Notice  of  administrator's  sale,  307. 

Affidavit  of  publisher,  3U7. 

Proof  of  posting  notices,  307. 

Report  of  sale,  308. 

Administrator's  report  of  private  sale  of  real  estate.  oOS. 

Order  confirming  sale.  310. 

Administrator's  deed.  :U0. 

Petition  for  sale  of    real   estate   reserving   personal   estate 
from  sale,  315. 
Settlements  of  Executors  and  Administrators, 

Citation  for  settlement.  30S. 

First  partial  settlenjent.  :574. 
Order  for  payment  of  debts.  376. 


628  INDEX 

[The  figures  refer  to  sections] 

FORMS— Continued, 

Settlements  of  Executors  and  Aoministbators — Continued, 

Of  execution,  377. 

Of  scire  facias,  378. 

Notice  of  final  settlement,  379. 

Of  final  settlement,  380. 
Settlements  of  Guardians  and  Curators, 

Annual  account  of  guardians  and  curators,  488. 

Final  settlement  of  accounts,  493. 

Notice  of  final  settlement,  493. 

Ward's  final  receipt,  496. 
Tax, 

See,  under  this  heading.   Collateral  Inheritance  Tax. 
Wills, 

Will.  31. 

Codicil  to  a  will.  31. 

Nuncupative  will,  31. 

Proof  of  will,  66. 

Commission  to  prove  will,  67. 

Return  of  commission,  68. 

Order  of  probate,  77. 

Citation  to  heirs,  etc.,  for  proof  of  nuncupative  will,  77. 

Judgment  establishing  will,  78. 

Petition  to  contest  will.  86. 

Renunciation  of  provisions  in  a  will  in  lieu  of  dower,  110. 

FRAUD, 

Invalidates  will,  16. 

FRUIT, 

Growing  or  hanging  on  trees  goes  to  heirs,  178-180. 

FUNERAL  EXPENSES, 
What  are,  2G0. 

G 

GIFT, 

Donatio  causa  mortis,  203. 
By  husband  to  wife,  199,  200. 

GOODS, 

See  Assets. 
Terms  used  in  will,  how  construed,  93. 
Meddling  with  constitutes  executor  de  son  tort,  133. 

GRANDCHILDREN, 

Term  used  in  will,  how  construed,  95. 
Distribution  of  estate,  entitled  to,  335. 

GRANDFATHER, 

Entitled  to  distribution.  .335. 
Entitled  to  administer,  145. 

GRANDMOTHER, 

See  Grandfather. 

GRASS, 

Growing,  goes  to  heirs,  180. 


INDEX  t)29 

[The  figures  refer  to  sections] 

GUARDIAN  (and  Curator), 
How  dt'liiu'd,  448-450. 
Ad  litem,  duties  of,  351.  4G2. 
Who  may  and  wlio  may  not  he,  451. 
For  whom  and  when  to  be  appointed,  452-455. 
Minor  over  fourteen  years  of  ajre  may  (  Ihmisc.  454. 
Notice  to  minor  to  elioose  guardian.  452. 
When  natural  guardian  is  unfit.  4-52. 
Minor  may.  on  attaininj;  fourteen,  choose  another,  454. 
Appointment  how  niade.  45(1. 
Statement  of  minor's  estate,  456. 
Entry  making  appointment,  456. 
Authenticated  copy  of  evidence,  456, 
Bond  of.  457. 

Transfer  of  guardianship,  when  and  how,  458. 
General  i>owers  and  duties  of.  4.59-4G4. 
Has  what  control  over  ward  and  his  estate,  459. 
Must  maintain  and  educate  ward.  4fiO. 
Cannot  deal  with  ward,  or  his  estate.  461. 
May  prosecute  and  defend  for  ward,  462-464. 
Must  collect  money  due  ward.  46.3. 
May  recover  custody  of  ward  how.  463. 
May  bind  him  as  an  apprentice.  403,  532. 
Duty  to  make  inventory  of  ward's  estate,  4(55. 
Must  have  property  appraised  when,  466. 
Concealed  or  embezzled  effects  how  recovered,  467. 
Sale  of  real  estate  by,  for  what  purpose,  468. 
Petition  and  order  of  sale.  469. 

Sale  to  be  advertised,  and  how  conducted,  470,  471. 
Certificate  of  purchase,  471. 
Deed  of.  and  form.  472. 
For  purpose  of  reinvestment,  473,  475. 
Of  non-resident  and  foreign  sale  of  land  of  non-resident  ward. 

476. 
Removal  of  estate  by  foreign,  477. 
Domicile  of  ward  is  where,  4.52,  479. 
How  changed.  479.  480. 
T>oaning  of  ward's  money.  481. 
Must  be  on  real  estate  security.  481. 
Is  liable  for  interest  when.  482. 
May  change  investment  of  ward's  estate,  483. 
Must  make  annual  settlement  of  accounts.  486. 
Should  keep  account  hov.-.  487. 
Form  of  aimual  account.  488. 
Statement  of  money  loaned  and  security,  488. 
Discharges  and  receipts  of,  489. 
Final  settlement  of,  490. 
On  death  of  ward.  491. 
In  case  of  non-resident  ward.  492. 
Form  of.  493. 
Notice  of.  493. 
Exhibit  must  remain  on  tile  how  long.  493. 


630  INDEX 

[The  figures  refer  to  sections] 
GUARDIAN  (and  Curator)— Contiuued, 
Appeals.  494. 
Effect  of  settlement,  494. 
Liability  of  ward  to  guardian,  495. 
Final  discharge  of  guardian,  49G. 

Forms  of  ward's  final  receipt,  acknowledgment  of  same,  40G. 
Compensation  of  guardian,  497. 
Removal  and  resignation,  498. 
Guardian  of  person  of  unsound   mind  and  habitual  drunkard, 

504-527. 
Of  friendless  children,  500-503, 

H 

HABEAS  CORPUS, 

IVfay  be  issued  when,  116,  117. 

HALF-BLOOD, 

Kindred  inherit  how,  337. 

HEIR, 

See  Cliildren;  Distribution. 
Construction  of  term  in  will,  91. 

Advancements  to,  when  and  how  considered,  39,  339. 
Distributive  share  of,  not  called  for,  how  disposed  of,  356. 
How  recovered,  356. 
Where  there  are  no  known  heirs,  358. 
Adopted,  528. 

HEIRSHIP, 

How  proved,  350. 

HOMESTEAD, 

Of  widow  and  children,  434-444. 
Present  value  how  ascertained,  446,  443. 

HOTCHPOTCH, 

Advancements  to  child  must  be  brought  into,  339. 

HUSBAND, 

See  Married  Woman  ;    Wife. 
Has  interest  in  wife's  real  estate  by  curtesy,  6,  420. 
Cannot  deprive  wife  of  her  dower,  .32,  421. 
Right  to  administer  on  wife's  estate,  143,  144, 
Has  no  right  to  her  separate  estate,  144. 
Has  right  to  her  personal  proi^erty  in  possession  when,  144. 
But  not  her  choses  in  action  unless  he  reduces  them  to  posses- 
sion, 144. 
Allowances  6ut  of  estate  of  wife,  213. 

I 

IDIOT, 

Cannot  make  will,  11. 
May  have  guardian,  504. 

INCAPACITY, 

Mental,  disqualifies  to  make  a  will,  9-19. 


INDKX  631 

[The  figures  refer  to  sections] 


INCIDENTS, 
Of  a  will,  3. 


INCREL^SE. 

Of  specific  legacy  goes  to  lesatee,  029. 

INFANT, 

See  Guardian  ;    Minor;    Ward. 
May  make  a  will  when,  (J. 

Cannot  be  guardian  or  administrator,  140,  451. 
Estate  of  may  be  administere<l  when.  157,  4(!L'. 
Should  be  represented  by  guardian  ad  litem,  when,  331,  4C2. 
Distributive  share,  or  legacy  to  guardian,  351. 
Over  fourteen  may  select  guardian,  454. 
Marriage  of,  affects  guardianship,  how,  490. 
Final  receipt  to  guardian,  496. 
Domicile  of,  follows  that  of  its  parents,  452,  479. 

INSANE  PERSONS, 

Disqualified  from  making  will,  10-14. 

Inquiry  as  to  sanity,  504. 

Inquii-j'  not  to  be  had  when  one  charged  is  not  owner  of  prop- 
erty, 504. 

Information,  forms  of,  504. 

Notice  to  person  under  investigation,  505. 

Form  of  order  to  bring  in  i)arty  and  entries,  505. 

Appointment  of  guardian,  500. 

Costs  of  proceeding,  how  paid,  50G. 

New  trial,  506. 

Bond  of  guardian,  507. 

Duties  of  guardian  of  insane  person,  508. 

Inventories,  509. 

Guardian's  notice  of  letters,  511. 

Claims  against  estate,  512. 

Sale  of  real  estate,  514-517. 

Settlement  of  guardian,  518. 

Removal  or  death  of  guardian,  519. 

Resignation  of  guardian,  527. 

Proceedings  on  recovery  of  ward,  522. 

Proceedings  where  confinement  of  insane  ward  is  required,  523- 
525. 

Curator  for  non-resident  of  unsound  mind,  526. 

INSOLVENT. 

Estate,  how  disbursed,  364. 

INSURANCE, 

Who  entitled  to,  195. 

INTEREST, 

Executors  and  administrators  must  account  for,   163. 
Should  be  stated  in  inventory,  207. 
Of  legacies  when   payable.   328. 
Money  of  ward  to  be  loaned  at.  481. 
Must  be  on  real  estate  security,  481,  482. 


632  INDEX 

[The  figures  refer  to  sections] 

INTESTATE, 

Defined.  134-142. 

When  deceased  is  deemed  to  die  intestate,  34. 

INVENTORY, 

Must  be  made,  when  and  how,  204. 

Allowance  of  property  to  widow  and  children,  208,  211. 

Additional  to  be  made,  210. 

By  guardian  or  curator,  form  of,  465. 

By  guardian  of  insane  ward,  508,  509. 

INVESTMENT, 

Of  ward's  estate  at  interest,  how,  481. 

Of  ward's  estate  may  be  changed,  483. 

Sale  of  laud  for  purpose  of  reinvestment,  473^75. 


.TEWET.S, 

Of  wife,  her  separate  property,  199. 

JOINT, 

Executors  and  administrators  may  join  in  bond,  155. 
Of  their  joint  liability,  408. 

JUDGE  OF  PROBATE, 

Qualifications,  118. 

Election  to  appoint  special  judge,  119. 

May  practice  law,  when,  120. 

Disqualified,  when,  121. 

Incidental  duties  of,  123. 

Powers  of,  in  vacation,  127. 

JUDOMiENT, 

To  be  placed  in  what  class,  260. 

Claim  may  be  established  by,  204,  265. 

Must  be  filed  in  court  and  effect  of,  265. 

How  entered,  and  forms  and  effect  thereof,  278-280. 

Classification  of  demand  has  effect  of,  282. 

Against  securities  of  former  administrator,  169. 

For  recovery  of  embezzled  effects,  216,  218. 

Against  distributee  failing  to  refund,  353. 

Final  account  has  effect  of,  882. 

Action  may  be  maintained  on,  212. 

Conclusive  against  securities  when,  411-416. 

JURISDICTION, 

Of  probate  court,  111-116. 

Limited,  113. 

Exclusive,  114. 

In  habeas  corpus,  116. 

Of  courts  in  action  by  executor.  241. 

In  actions  against  executor,  2G6. 

Of  probate  court  in  what  cases,  267,  298,  411. 


INDKX  6^ 

[The  figures  refer  to  sections] 

JURY, 

How  impaneled,  and  trial   by.  2(4. 
Contest  of  will  may  be  tried  by,  87. 
And  complaint  for  embezzled  effects,  216. 

JUSTICE  OF  THE  PEACE, 

Has  no  jurisdiction  of  suit  against  executor,  etc.,  2o9,  -bu. 
Of  suits  by  executor  and  administrator,  250. 


'  '  See  Administrators ;  Executors ;  Guardian  ;  Real  Rstate. 
Descends  to  lieirs,  174. 

May  be  sold  under  power  in  will.  174,  28.'>-288. 
Contract  for  purcliase  of.  may  be  sold.  2S9. 
Contract  for  sale  of,  may  be  enforced,  292. 
Encumbered  by  deed  of  tru>.t  or  lien,  299. 
Aiay  be  purcliased  wlien.  299. 
Sale  of,  for  payment  of  debts,  298-318. 
Of  insane  ward,  514-517. 

LAPSED. 

r^egacy,  100,  101,  322. 

LAW 

Of  domicile  governs  will  of  personalty.  81-83. 

Of  domicile  governs  distribution   of  personalty,  .^bO,  6*3Z. 

In  force  at  time  of  death,  governs  a  will,  3.  90. 

Of  place  where  land  is  situate  governs  the  devise  or  descent  of 

same,  81,  360. 
Of  domicile  of  ward,  452,  479. 

LEASE, 

By  executor  or  administrator  of  real  estate,  l<-4. 
I'nexpired  term  is  personal  estate.  188. 
By  agent  of  laud  unknown  heirs,  358. 
Of  real  estate  by  guardian,  468. 

LEGACY, 

See  Bequest;    Wills. 
Debts  must  be  paid  before,  319-331. 
General  and  special  defined,  321. 
Will  lapse  when,  and  when  not,  100.  322. 
Assent  of  executor  thereto  necessary.  323. 
When  cumulative.  324. 
When  in  lieu  of  dower,  325. 
To  creditor  in  satisfaction  of  debt,  320. 
By  creditor  of  debtor,  327. 
Interest  on,  when  payable,  328. 
Increase  of  goes  to  legatee,  329. 
Time  when  should  be  paid,  101,  330. 

Of  minor,  paid  to  guardian.  249.  ,  .,     ,      ,    .,.,0 

Form  of  receipt  for,  and  refunding  bond  and  its  form,  .«-. 
Payment  of,  how  compelled,  33.3. 


634  INDEX 

[The  figures  refer  to  sections] 

LEGATEE, 

Must  answer  description  given,  94. 
How  described  in  will,  95-98. 

LETTERS, 

See  Administrators;    Executors. 
What  court  may  grant,  138. 
In  what  county  must  be  granted.  139. 
To  whom  may  be  granted,  140,  141. 
When  the  right  of  husband  is  barred,  144. 
To  distributee  or  next  of  kin,  145. 
Should  not  be  granted  when,  147. 
Proceedings  to  obtain,  148. 
Form  of  entry  granting,  149. 
Executor  has  no  authority  without,  137. 
Validity  and  form  of,  157. 
Granted  in  vacation  must  be  conhrmed,  158. 
May  be  granted  on  estate  of  minor,  157. 
Must  be  recorded,  158. 

Copy  of  record  certified  evidence  when,  158. 
Testamentary,  form  of,  158. 
Of  administration,  form  of,  158. 
Of  administration  with  the  will  annexed,  of  administration  de 

bonis  non,  158. 
How  revoked,  160. 

For  failing  to  give  additional  bond,  162. 
For  failing  to  make  settlements,  161. 
Order  revoking,  163. 
How  resigned,  165. 
De  bonis  non,  to  whom  granted,  165. 
Revocation  of,  how  affects  coadministrator,  106. 
Notice  of,  when  and  how  given,  219-224. 
Notice  when  there  are  no  known  heirs,  221. 
Do  not  issue  to  guardian,  456. 

LIABILITY, 

See  Administrators ;    Executors. 
Of  heirs,  etc.,  to  creditors,  385. 
Of  executors  and  administrators,  408-416. 
Proceedings  against,  411-113. 
Suit  on  bond  of,  414-416. 
For  acts  of  decedent,  257. 
Of  ward  to  guardian,  534. 
Of  guardian,  461. 

LIEN, 

Of  writ,  personal  estate  subject  to,  how  disposed  of,  233. 
Land  incumbered  by,  may  be  sold,  299,  316,  317. 

LIFE, 

Expectation  of,  446,  560. 

LIMITATION, 

For  presenting  claims  against  estate,  224,  261,  511,  512. 

LOTS, 

Land  may  be  laid  off  into,  314. 


«^5 

[The  ngures  refer  to  sections] 

LUNATIC, 

Cannot  make  a  will,  12. 
May  have  a  guardian,  504. 

M 
MARRIAGE, 

Of  ward,  490.  490. 

Is  essential  to  dower,  420. 

Of  single  woman  revokes  her  will,  5o. 

MARRIED  WOMAN, 

See  Widow. 
May  make  a  will,  7. 
Is  entitled  to  dower  interest,  32,  420 

Mav  have  separate  estate,  her  paraphernal  a.  144.  100.  _0-. 
Cannot  be  executrix  or  administratrix,  140. 
Nor  guardian  or  curator  of  the  estate  ot  a  minor,  4oI. 

isnNOR, 

See  Infant;   Ward. 
At  what  age  attains  majority,  450. 
Jklay  make  a  will,  6. 
May  be  apprenticed.  532. 

Cannot  be  administrator  or  guardian,  140,  4ol. 
May  select  guardian  if  over  fourteen    4o4 
Marriage  of,  determines  guard.anslui  ._4J0. 
Domicile  of,  follows  that  of  parent    4o-,  4.9. 
Sale  of  land  of,  by  guardian,  4Gb,  ol4. 

MONEY, 

When  considered  as  land,  1<4,  -bo.  .  ,,.  .„^    .-o    ► 

Of  estates  in  hands  of  executor  or  administiator,  1.3. 
Of  ward  to  be  loaned  on  real  estate  security,  4bl. 

MORTGAGE, 

Made  by  guardian,  517.  .„,:,,.,iinn  or  curator, 

Must  be  taken  to  secure  money  loaned  bj   guaidmn  or  curaio  , 

Laud  incumbered  by,  how  disposed  of,  290. 

Goods  mortgaged  are  assets,  198. 

Of  land  by  testator,  effect  of  on  will,  oS. 

''""^natural  guardian  of  her  children  when,  448. 
Mav  inherit  from  her  bastard  child,  341. 
Is  entitled  to  distribution,  335. 
Domicile  of  minor  children  toUow  that  of,  4o-. 

'"''I^offamily  is  part  of  funeral  expenses  when.  2G0. 

N 

NAMING, 

Of  child  in  will,  32-37. 
Adopted  child,  520. 


636  INDEX 

[The  figures  refer  to  sections] 

NEGLECT, 

Of  executor  or  administrator  to  collect  debts,  237. 

NOTE, 

May  be  delivered  to  heirs,  creditors  or  distributees,  319,  381. 
On  hand  at  final  settlement,  how  disposed  of,  3S1. 
Guardian  should  take  on  loaning  money  of  ward,  481. 

NOTICE, 

See  Citation ;    Forms. 
Of  intention  to  resign  letters,  165. 
Of  taking  out  letters,  219. 
By  administrator  de  bonis  non.  220. 
Where  intestate  left  no  known  heirs,  221. 
By  guardian  of  insane  ward,  .511. 
Of  administrator's  sale  of  personalty,  227. 
To  administrator  of  demand,  262. 
Of  presenting  same  for  allowance,  267. 
Waiver  of  by  administrator,  268. 
Of  petition  by  purchaser  for  deed,  292. 
Of  petition  to  sell  land  to  pay  debts,  ;503. 
Of  sale  of  land  in  such  cases,  307. 
Of  petition  for  division  of  property,  34.5. 
Of  motion  for  judgment  against  distributee,  353. 
Of  final  settlement,  379. 

Of  public  administrator  of  administration,  404. 
To  widow  of  right  of  election,  423. 
To  minor  to  choose  guardian,  452. 
Of  guardian's  final  settlement,  493. 

NUNCUPATIVE  WILL, 

See  Wills. 
What  Is  and  how  made,  41-^4. 
By  mariner  at  sea,  or  soldier,  43. 


o 

OATH, 

See  Forms. 
Of  administrutor,  148. 

Of  executor  or  administrator  with  will  annexed,  149. 
To  inventory,  204. 
Of  appraisers,  209. 
Of  publisher,  223,  307. 
Of  clerk  of  sale,  231. 
Of  creditor  to  demand,  269. 
By  agent  of  creditor,  270. 
Of  appraisers  of  real  estate,  306. 
Of  commissioners  to  divide  personal  estate,  348. 
For  appeal,  418. 

Of  master  as  to  duty  to  apprentice,  535. 
To  guardian's  rejiorts,  488,  493. 

OFFSET, 

When  allowed,  158-181. 


INDHX  Go7 

[The  figures  refer  to  sections] 
ORDEH  OF  COURT, 

KcHiuirinK  additional   bond.  K!.*!. 

Acoepting  reai^iiuition,  165. 

Of  complaint  for  concealed  ijropcrt.v.  lilS. 

For  private  sale  of  property,  L'.'ili. 

Appointing  per.son  to  resist  demand  of  adndnistrator.  '_'77. 

To  sell  interest  of  deceased  in  executory  contract,  li'JL'. 

To  specifically  perform  contract,  294. 

Of  sale  of  land  to  pay  debts,  :i04. 

Confirming  .sale.  310. 

For  partition  of  personal  property,  346. 

Of  sale  in  such  case.  346. 

Approving  report.  34S. 

For  refunding  by  distributees,  352. 

For  payment  of  debts.  376. 

To  set  off  dower  and  homestead.  444. 

Appointing  guardian.  4r)6. 

Of  guardian's  sale  of  land.  460. 

Of  guardian's  sale  of  land  for  re-investment.  474. 

For  sale  of  land  in  case  of  noii-resideut  minor,  476. 

Appeal  from  will  lie  when.  417. 

Of  court  to  change  ward's  estate,  483. 


PARAPHERNALIA, 

Of  wife.  190-202. 

PARENTS, 

Are  natural  guardians  of  children,  448. 

PARTITION, 

Of  jiersonal  estate,  343-348. 

PARTNER. 

Surviving,  is  entitled  to  partnership  effects,  197,  386. 

PARTNERSHIP  EFFECTS, 
How  considered.  197,  386. 

PARTNERSHIP  ESTATES, 
How  settled.  3.S6-401. 
Death  dissolves  jtartnership.  386. 
Right  of  survivor  to  partnership  effects,  197.  .386. 
Liability   of   estate  of   deceased  ixirtner  for    partnership   debts, 

387. 
Contribution  between  survivor  and  estate,  388. 
The  survivor  has  first  right  to  administer,  389. 
Must  give  bond,  the  form  thereof.  300. 
Must  file  inventory,  and  form.  301. 

Powers,  duties  and  liabilities  of  survivor  in  settling.  391-394. 
Allowance  and  payment  of  demands.  302. 
Settlements  by  survivor,  394. 

Administration  by  administrator  of  deceased  partner.  393. 
Duty  of  survivor  to  hand  over  effects.  3J>6,  397. 
Demands  must  be  allowed  and  classified.  39S. 
Administration  by,  to  be  governed  by  general  law.  .399. 


638  INDEX 

[The  figures  refer  to  sections] 

PARTNERSHIP  ESTATES— Continued, 

Administration  to  be  kept  separate,  399. 
Must  give  bond,  the  form  tliereof,  400. 
Appeal,  401. 

PATENT, 

Who  entitled  to,  193. 

PAYMENT, 

See  Debts ;    Legacy. 
Of  debts  before  legacies,  319,  331. 
By  order  of  court.  376. 
Enforced  against  heirs  or  distributees,  385. 
By  surviving  partner,  391. 
By  administrator  of  deceased  partner,  395. 
Of  legacies,  321. 
Of  interest  on,  .328. 
Of  minor  to  guardian,  .330. 
May  be  compelled,  3.33. 
Of  claims  according  to  classification,  319. 
Of  demand  without  allowance,  272. 
Of  debts  of  non-residents,  363. 
Of  estate  by  guardian  to  ward  when,  490,  496. 

PETITION, 

See  Forms. 
To  contest  will,  86. 

Of  administrator  de  bonis  non  for  judgment,  in  what  case,  168. 
To  sell  interest  of  deceased  in  executory  contract,  290. 
By  purchaser  of  land  for  deed,  292. 
For  sale  of  land  to  pay  debts,  302. 
For  division  of  personal  property,  343. 
In  suit  on  bond  of  public  administrator,  407. 
Of  creditor  for  further  account,  411. 
For  assignment  of  dower  and  homestead,  444. 
By  guardian  for  sale  of  real  estate  of  ward,  469. 
For  appointment  of  guardian  of  friendless  child,  50L 

PLEADINGS, 

Case  to  be  decided  without  regard  to  forms  of,  273. 

POLICY, 

Of  insurance,  195. 

POSTPONING, 

Sale  of  personal  property,  229. 

POWER, 

Of  executor  to  sell  land,  174,  285. 

PRESENTATION, 

Of  demands  for  allowance,  260,  281,  512. 

PRINCIPAL, 

And  ancillary  administration  of  non-resident's  estate,  361,  365. 
Ancillary  guardianship,  479. 

PRIORITY, 

Order  of,  in  payment  of  debts,  319. 


iNiJiix  639 

[The  figures  refer  to  sections] 

PRIVATE  SALE, 

Of  iKTsonal  property,  2'.','2. 
Of  real  estate  by  administrator,  ."508. 
Of  real  estate  by  ^Uiirdiaii,  40'J. 
For  iusarie  ward,  515. 

PROBATE  OF  WILL. 

Production  of  will,  61i. 

How,  in  what  court  and  county,  G3,  Go. 

In  what  form.  00-70. 

By  proof  of  handwriting,  71. 

Of  lost  will,  73. 

Nature  of  proof  and  number  of  witnesses,  73. 

By  deposition,  67,  OS. 

Certificate  of  probate  or  rejection.  75. 

Of  codicil  and  effect  thereof  on  will.  76. 

Of  nuncupative  will,  77. 

Widow  or  next  of  kin  to  be  cited.  77. 

Decision  of  court  to  be  entered  of  record  and  effect  thereof,  78. 

In  another  state  is  a  judicial  act,  78. 

PROOF, 

See  Probate  of  Will. 
Of  heirship,  350. 

PROPERTY, 

Of  deceased  vests  in  representative  when,  171,  172. 

Held  in  trust,  not  assets,  19ii. 

Partnership,  how  administered,  386— iOl. 

Allowance  of,  to  a  widow,  208,  211. 

Allowance  of,  to  minor  children  and  widower,  213. 

PROVISIONS, 

On  hand,  what  allowed  to  widow  and  family,  211. 
If  not  on  hand,  to  be  supplied,  212. 

R 

REu\L  ESTATE, 

See  Lands. 
Descends  to  heirs,  174.  177,  300. 
Executor  may  sell  under  power  in  will,  174,  285. 
Contract  for  purchase  of,  may  be  sold,  289. 
Contract  for  sale  of  may  be  enforced,  292. 
When  encumbered  by  lien,  deed  of  trust,  etc.,  298. 
Sale  of,  for  payment  of  debts  and  legacies,  29:^318. 
May  be  divided  into  town  lots,  314. 
May  be  sold  and  personalty  reserved,  315. 
When  bound  by  lien  of  attachment  or  judgment,  316. 
When  sold  on  junior  judgment,  what,  317. 
Public  sale  of,  must  be  at  auction,  308. 

At  private  sale  must  be  at  three-fourths  ai>praisement,  308. 
leasehold  iuterest.s,  318. 
Agent  to  be  appointed  for  unclaimed,  358. 
How  managed  in  such  case.  ;'.58. 
May  be  leased  or  rented  by  administrator.  174. 


640  INDEX 

[The  figures  refer  to  sections] 

REAL  ESTATE— Continued, 

Money  will  be  considered  as  when,  174,  285. 

Is  assets  when,  386. 

Widow  has  dower  in,  420-432. 

Of  non-resident,  how  disposed  of,  360,  363. 

Of  non-resident  minor,  how  sold,  476. 

Sale  of,  by  guardian,  for  education  of  ward,  468. 

Sale  of,  for  purpose  of  reinvestment,  473. 

Sale  of,  by  non-resident  guardian,  476. 

Money  to  be  loaned  on  security  on,  481. 

RECEIPT, 

Of  widow  for  property,  etc.,  215. 

For  a  demand,  320. 

Of  legatee,  332. 

To  be  used  as  voucher,  373. 

Of  ward,  496. 

REFUNDING, 

Of  legatee,  distributee,  or  creditor,  352. 

Form  of  order,  352. 

Notice  of  motion  for  judgment,  353. 

Form  of  judgment,  353. 

Form  of  bond,  332. 

REMOVAL, 

See  Letters ;   Revocation. 
Of  executors  and  administrators,  162. 
Of  guardian  or  curator,  498. 
Or  ward's  estate,  477. 

RENT, 

When  it  goes  to  the  administrator  and  when  to  the  heir,  189. 
Executor  or  administrator  may  rent  real  estate  when,  174. 
Agent  may  rent  unclaimed  real  estate,  358. 

REPORT, 

See  Dower ;    Homestead  ;    Sale  (of  Land). 
Of  sale  of  land  by  execaitor  or  administrator  to  pay  debts,  309. 
Of  sale  by  guardian  of  ward's  laud,  470-475. 

REPUBLICATION, 

See  Wills. 
Of  will,  effect  of,  59-61. 

RESIGNATION, 

Of  executor  or  administrator,  165. 

Proceedings  in  case  of,  against  delinquent  administrator,  166. 

Of  guardian,  498. 

Of  guardian  of  insane,  527. 

REVOCATION, 

See  Letters;    Wills. 
Of  will,  45. 

By  a  subsequent  will,  46. 

By  burning,  canceling,  tearing,  or  obliterating,  50. 
By  marriage,  or  marriage  and  issue  born,  55,  56. 
Implied  by  alienation  of  the  estate,  57,  58. 


INDEX  ^41 

[The  figures  refer  to  sections] 

REVOCATION— roiitliined, 

Of  letters  testamentary  and  admiiiistralion,  ItJO,  IGl. 
Proceedings  on  revocation,  IGG-IO'J. 

RIGHTS, 

See  Administrators ;   Guardian. 
Of  executor  or  administrator  to  property  of  deceased,   171-203. 
Of  guardian,  459-404. 

s 

SALE, 

Of  Personal  Propertt,  22."»-236, 

Wliat  may  be  sold  and  what  not,  22r>.  226. 

Notice  of.  how  given  and  form  of,  232. 

How  conducted,  228. 

Postponement  of,  229. 

Clerk  must  keep  account  and  list  of,  230. 

Form  of  sale  bill,  230. 

Return  of  sale  bill,  231. 

Private,  may  be  ordered  when,  232. 

Of  property  bound  by  lieu  of  execution  or  attachment,  233. 

Proceeds  of,  how  applied,  234. 

Right  of  widow  to  property,  235. 

When  may  be  reserved  from  sale,  236,  315. 
Of  Real  Estate, 

Under  power  contained  in  will,  174,  285. 

Form  of  deed  in  such  case,  287. 

Proceeds,  how  applied,  288. 

Of  contract  for  purchase  of  land,  289. 

Must  be  by  order  of  court,  290. 

Application  for  order,  form  of  order,  290. 

Deed  of  release,  291. 

Of  lands  encumbered  by  mortgage,  etc.,  299. 
Of  Real  Estate  by  Guardian  or  Curator,  468-475. 

For  what  purposes  may  be  sold,  4GS. 

For  education  of  minors,  form  of  petition  in  such  case,  469. 

Must  be  advertised  how,  470. 

Must  sell  for  three-fourths  of  appraised  value,  471. 

Guardian  or  curator  cannot  buy,  471. 

Must  be  reported  to  the  court  how,  470. 

Must  be  approved,  470. 

No  title  passes  when.  471. 

Certificate  of  purchase,  471. 

Deed,  when  to  be  made  and  form,  472. 
Of  Real  Estate  for  Payment  of  Dkhts,  300. 

Petition  for.  what  it  must  contain  and  form,  30L 

May  be  made  by  creditor  when,  302. 

Notice  of,  how  given  and  form,  303. 

Application  for,  may  be  resisted  by  whom.  304. 

Form  of  order  of,  304.  .S05. 

Lands,  how  appraised,  306. 

Notice  of  sale,  how  given  and  form,  307. 

Sale,  how  and  where  made,  308. 
Kel.Mo.P.(J. — 11 


Gi2  INDEX 

[The  figures  refer  to  sections] 

SALE — Continued. 

Of  Real  Estate  for  Payment  of  Debts — Continued, 

Report  of  sale,  309. 

Approval  of  reports  and  confirmation  of,  310. 

Form  of  deed,  310. 

In  case  of  death  or  removal  of  executor  or  administrator, 
deed  to  be  made  by  whom,  311. 

Effect  of  deed,  312. 

Court  may  order  sale  without  petition  when,  313. 

Personal  estate  may  be  reserved,  and  real  estate  sold  when, 
236,  315. 

Lands  may  be  divided  into  town  lots  and  sold,  314. 

What  petition  must  state  when  real  estate  is  bound  by 
lien  of  judgment  or  attachment,  316,  317. 

Land  bound  by  lien  of  several  judgments  or  attachments, 
sold  on  junior  judgments,  what  proceedings  by  administra- 
tor, 317. 

Liability  of  purchaser  for  prior  liens,  317. 
Sale  for  Purpose  of  Reinvestment,  473. 

Form  of  petition,  473. 

Examination  of  witnesses  in  such  case,  474. 

Form  of  bond,  474. 

Ward  not  bound  by  covenants  in  deed,  475. 

Land  of  non-resident  minor,  how  sold,  476. 

By  non-resident  guardian  or  curator,  476. 

By  guardian  of  insane,  514-517. 

SALE  BILL, 

Of  personal  estate,  230,  231. 

SCIRE  FACIAS, 

When  may  issue  and  form,  378. 

SET-OFF, 

When  allowed,  248,  273. 
Must  be  filed  in  writing,  273. 

SETTLEMENT, 

See  Account. 
Annual,  of  administrator,  306-378. 
Final,  of  administrator,  379-385. 
Has  what  effect,  382-384. 
How  set  aside,  383. 

Notes,  accounts,  stocks  and  certificates  to  be  paid  to  heirs,  cred- 
itors, etc.,  on  final,  381. 
Annual,  of  guardian  and  curator,  486. 
Final,  of  guardian  and  curator,  effect  of,  494. 

SICKNESS, 

Last,  expenses  of,  to  be  paid,  260. 
Making  nuncupative  will  in,  41-44. 
Gift  of  goods  in,  203. 

SOLDIER, 

May  make  nuncupative  will,  43. 


INDEX  643 

[The  figures  refer  to  Bectlona] 

SPECIAU 

Adiuinistration,  135. 

lA'gacy,  3i;i. 

Judf,'e  of  probate,  119. 

STATE  THEASUItY, 

Di.stiiliutive  share  unclaimed  paid  Into.  .3.'6. 
How  drawn  out,  3;jG,  357. 

Proceeds  of  unclaimed  real  estate  paid  lulu,  358. 
How  drawn  out,  358. 

STATITE  OF  LIMITATIONS, 
Claim  barred  when,  224,  261. 

STOCKS, 

Are  assets  when,  190. 

May  be  sold  and  assigned,  3S1. 

SUITS, 

By  executor  or  administrator,  237-246. 

Set-off  against,  248. 

Against  executor  or  administrator.  2<>6. 

By  creditor  to  establish  demand,  2G2-280. 

Set-off  against,  273. 

Trial,  274. 

On  bond  of  executor  or  administrator,  408-416. 

Prosecuted  and  defended  by  guardian,  462,  404. 

By  insane  ward,  513. 

SURETY, 

See  Bonds. 
On  sale  of  real  estate,  required  by  guardian,  481. 

SURVIVAL,  182. 

T 

TAXES, 

Have  what  priority,  260. 

TENANT, 

When  entitled  to  fixtures,  184,  185. 

TERMS  OF  SALE, 

See  Sale. 

TESTAMENT, 

Defined,  2. 
TOMBSTONES, 

Law  touching,  260. 

TRANSFER, 

Of  guardianship,  458. 

TREASriiEK. 

See  State  Treasury. 

TREES, 

Are  assets  when,  178,  180. 

TRIAL, 

By  jury,  84,  274,  501. 


644  INDEX 

[The  figures  refer  to  sections] 

TRUST, 

Created  by  wills  and  trustees,  104-109. 
Propertj'  not  assets,  192. 

u 

UNCLAIMED  ESTATES, 

Real  and  personal  estate,  356-359. 


VOUCHER, 

See  Receipt. 

w 

WARD, 

See  Curator;    Guardian;    Minor;    Sale. 
Defined,  450. 

Relation  of  guardian  to  ward,  448-456. 
>>■  on-resident,  land  of  how  sold,  476. 
Domicile  of,  452,  479. 
Final  receipt  of,  496. 

WASTES 

By  executor  or  administrator,  408-416. 

WIDOW, 

May  elect  under  will,  110. 

Allowance  to,  211. 

Separate  property  of,  199,  202. 

Takes  whole  estate  when.  147,  334. 

Right  to  property  bound  by  lien,  235. 

When  real  estate  is  sold,  her  interest  in  personalty,  349. 

Dower  in  real  estate,  420. 

May  elect  to  take  what,  in  lieu  of  dower,  422. 

Notice  to,  in  such  case,  423. 

Election  by,  when  and  how  made,  424. 

Election  to  take  child's  part,  425. 

Dower  of,  how  released  or  barred,  427-430. 

Proceedings  for-  assignment  of  dower,  431. 

Dower  in  personalty,  432. 

Right  of,  to  homestead,  434-444.  , 

WIDOWER, 

Rights  as  to  property  of  deceased  wife,  213. 
Rights  at  common  law  of  surviving  husband,  202. 
Distributive  share  of,  335. 

WILLS, 

Origin,  nature  and  incidents,  1,  4. 

Who  may  make,  5.  ^ 

Disability  of  infancy,  6. 

Coverture,  7. 

Alienage,  8. 

Who  cannot  make,  10. 

Imbecility  or  want  of  mental  capacity,  10. 

Idiocy,  11. 


imm;x  ^^~^ 

[The  flgurea  reter  to  aetUoual 

WILLS — Coutiuued, 
l>unacy,  12. 

Non  compos  mentis,  13. 
Druukenuess,  14. 
Sound  mind  defined,  12. 
From  want  of  liberty  or  free  will,   15. 
Effect  of  fear,  15. 

Fraud  and  undue  inrtuence,  10,   1". 
On  account  of  conviction  for  crime,  18,  19. 
Of  the  form  and  manner  of  making,  20-30. 
Essential  ingredients  of,  20. 
Must  be  in  writing,  21. 
Must  be  signed  how,   26. 
Must  be  attested  how,  28,  30. 
Must  depend  on  death,  25. 
Forms,  :!1. 

Disinheriting  wife  or  child,  32^0. 
EJffect  of  omission  of  child,  38. 
What  is  naming  of  child,  30. 
Legatee  or  devisee  to  refund  to,  39. 
Nuncupative  will,  41-44. 
Revocation  of.   45-58. 

By  subsequent  will,  46.  „,       ^        ka 

By  burning,  canceling,  tearing,  or  obUterating,  50. 
By  marriage,  or  marriage  and  issue,  55,  56. 
By  alienation  of  the  estate,  57. 
Effect  of  agreement  to  convey,  58. 
Effect  of  incumi)rance,  58. 
Republication   of,  59-01. 
Probate  of,  62-78. 

In  what  court  and  what  county,  63. 
By  proof  of  handwriting,  71. 
Of  lost  will,  73. 
By  depositions,  67. 

Certificate  of  probate  or  of  rejection,  75. 
Of  codicil  and  effect  thereof  on  will,  76. 
Of  nuncupative  will,  77. 
Decision  of  court  to  be  recorded,  78. 
Effect  of  same.  78. 

In  another  state  a  judicial  act   78^         .    -q    ca 
Recording  when  and  where  and  effect  of,    .9,  80. 
Foreign,  what  law  governs,  81-83. 
Contesting  will,  84-88. 
Construction  of,  89-103. 
General  rules  of,  90. 
What  expressions  pass  a  fee,  91. 
Limitation  of  estate,  92. 
Rule  in  Shelley's  case,  not  law,  23.  92 
What  words  and  phrases  pass  personalty.  9.^. 
Devisee  or  legatee  must  answer  description  Jnven^4 
Expressions  describing  devisee  and  legatee,  9o-ys. 
Ambiguity  patent  and  latent  explained,  98. 
Lapsed  legacies,  lOO. 


OrlG  INDEX 

[The  figures  refer  to  sections] 
WILLS— Continued. 

Kules  for  construction  of  legacy  in  equity,  101. 

Trusts  created  by,  104-109. 

Widow's  right  of  election,  as  to  husband's  will,  110. 
WITNESSES, 

Number  required  to  execution  of  will,  28. 

Must  be  competent,  30. 

May  be  contradicted  or  impeached,  72. 

Competency  of,  in  actions  by  or  against  executors  and  adminis- 
trators, 255. 


[End  of  Volume] 


University  of  Caiifomia 

SOUTHERN  REGIONAL  LIBRARY  FACILITY, 

405  Hilgard  Avenue,  Los  Angeles,  CA  90024-1388 

Return  this  material  to  the  library 

from  which  it  was  borrowed. 


^ 


^C-) 


^ 


N 


SL 


Vl% 


§  1j  ^u 


^^.1 


%^ 


T^  \      I 


^ 

5 


AA    000  761  631 


^Q^ij|^4^t 


V 


